Kane v. Peter M. Moore Constr. Co., Inc.Kane v. Peter M. Moore Constr. Co., Inc.
In an action, inter alia, to recover damages for personal injuries, (1) (a) the defendant Nicholas Scaglione, as the executor of the estate of Leslie Scaglione, appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Bruno, J.), entered February 27, 2014, as, upon reargument, vacated so much of the determination in an order of the same court dated July 10, 2013, as, in effect, granted those brаnches of his motion which were for summary judgment dismissing the cause of action alleging common-law negligence and all cross claims insofar as asserted against him in his capacity as the executor of the estate of Leslie Scaglione, аnd thereupon denied those branches of his motion, and (b) the defendant Peter M. Moore Construction Co., Inc., separately appeals, as limited by its brief, from so much of the same order as, upon reargument, vacated so much of the determination in the order dated July 10, 2013, as granted those branches of its motion which were for summary judgment dismissing so much of the cause of action alleging a violation of
Ordered that the cross appeal by the defendant Peter M. Moore Construction Co., Inc., from so much of the order entered October 15, 2014, as denied its motion for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the cross appeal by the defendant Peter M. Moore Construction Co., Inc., from so much of the order entered October 15, 2014, as, upоn reargument, vacated so much of the determination in the order entered February 27, 2014, as, upon reargument, vacated the determination in the order dated July 10, 2013, granting that branch of the motion of the defendant Nicholas Scaglione which was for summary judgment dismissing the complaint insofar as asserted against him in his individual capacity, and thereupon denying that branch of the motion, and thereupon adhered to the determination in the
Ordered that the order entered February 27, 2014, is modified, on the law, by deleting the provision thereof, upon reargument, vacating so much of the determination in the order dated July 10, 2013, as granted that branch of the motiоn of the defendant Peter M. Moore Construction Co., Inc., which was for summary judgment dismissing so much of the cause of action alleging a violation of
Ordered that the order entered October 15, 2014, is reversed insofаr as appealed from by the defendant Nicholas Scaglione, on the law, and, upon reargument, so much of the determination in the order entered February 27, 2014, as, upon reargument, vacated so much of the determination in the order dated July 10, 2013, as granted that branch of his motion which was for summary judgment dismissing the cause of action alleging common-law negligence insofar as asserted against him in his capacity as the executor of the estate of Leslie Scaglione, and thereuрon denied that branch of his motion, is vacated, and the determination in the order dated July 10, 2013, is adhered to; and it is further,
Ordered that the order entered October 15, 2014, is affirmed insofar as reviewed on the cross appeal by the defendant Peter M. Moоre Construction Co., Inc.; and it is further,
Ordered that one bill of costs is awarded to the defendant Nicholas Scaglione payable by the plaintiff.
In February 2008, the defendant Nicholas Scaglione (hereinafter Nicholas) and his now-deceased wife, Leslie Scaglione (hereinafter Leslie; hereinafter together the Scagliones), retained the defendant Peter M. Moore Construction Co., Inc. (hereinafter Moore Construction), to perform renovations to several bathrooms and bedrooms in their home. The Scagliones also retained nonparty Alternative Closets to install a custom closet system for their master bedroom. The plaintiff Steven Kane (hereinafter the injured plaintiff), an employee of Alternative Closets, wаs injured when he allegedly slipped and fell on
During the pendency of the action, Leslie died and Nicholas, as the executor of her estate, was substituted in her place.
In an order dated July 10, 2013, the Supreme Court, in effect, grаnted Nicholas’s motion for summary judgment dismissing the complaint insofar as asserted against him, in both his individual capacity and in his capacity as the executor of Leslie’s estate, and granted Moore Construction’s motion for summary judgment dismissing the complaint insofar as asserted against it. The plaintiffs moved for leave to reargue. In an order entered February 27, 2014, the Supreme Court, upon reargument, vacated the determination in the order dated July 10, 2013, granting that branch of Nicholas’ prior motion which was fоr summary judgment dismissing the common-law negligence cause of action insofar as asserted against him in his individual capacity and as executor of Leslie’s estate, and thereupon denied that branch of the motion, and vacated the determination in the order dated July 10, 2013, granting those branches of Moore Construction’s prior cross motion which were for summary judgment dismissing the plaintiffs’ common-law negligence and
Nicholas, in his capacity as the executor of Leslie’s estate, and Moore Construction appeal.
Contrary to the Supreme Court’s determination, Nicholas established his prima facie entitlemеnt to judgment as a matter of law dismissing the common-law negligence cause of action insofar as asserted against him in his capacity as the executor of Leslie’s estate, by establishing that Leslie neither created nor had actual or constructive notice of the alleged dangerous condition (see Correll v U.S. Bank N.A., 122 AD3d 791, 792 [2014]; Luzinski v Kenvic Assoc., 242 AD2d 246, 247 [1997]). “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see Parietti v Wal-Mart Stores, Inc., 140 AD3d at 1040-1041). However, “constructive notice will not be imputed where,” as here, “a defect is latent and would not be discoverable upon reasonable inspection” (Curiale v Sharrotts Woods, Inc., 9 AD3d 473, 475 [2004]; see Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798, 800 [2003]). “If a defect could not have been disсovered by a layman, even by inspection, it is considered a latent defect” (Rapino v City of New York, 299 AD2d 470, 471 [2002]). In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
The Supreme Court properly denied that branch of Moore Construction’s motiоn which was for summary judgment dismissing the common-law negligence cause of action insofar as asserted against it, as Moore Construction failed to establish, prima facie, that one of its employees did not create the alleged dangerоus condition (see Amendola v City of New York, 89 AD3d 775, 776 [2011]; cf. Nealy v Pavarini-McGovern, LLC, 135 AD3d 917, 919 [2016]), that the injured plaintiff could not identify the cause of his fall (see Davis v Sutton, 136 AD3d 731, 732 [2016]; Gotay v New York City Hous. Auth., 127 AD3d 693, 694-695 [2015]), or that the alleged dangerous condition was open and obvious and, as a matter of law, not inherently dangerous (see Cupo v Karfunkel, 1 AD3d 48, 52 [2003]; see also Miller v Costco Wholesale Corp., 125 AD3d 828 [2015]; cf. Gagliardi v Walmart Stores, Inc., 52 AD3d 777 [2008]). Since
However, Moore Construction established its prima facie entitlement to judgment as a matter of law dismissing so much of the
Finally, Nicholas established his prima facie entitlement to judgment as a matter of law dismissing Moore Construction’s cross claims for contribution and common-law indemnification insofar as asserted against him, in his both his individual capacity and as the executor of Leslie’s estate, as he established that neither he nor Leslie breached a duty owed to the injured plaintiff (see Guerra v St. Catherine of Sienna, 79 AD3d 808, 809 [2010]; see also 492 Kings Realty, LLC v 506 Kings, LLC, 105 AD3d 991, 995 [2013]; Proulx v Entergy Nuclear Indian Point 2, LLC, 98 AD3d 492, 493 [2012]). In opposition, Moore Construction failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d at 562).
Rivera, J.P., Austin, Roman and Connolly, JJ., concur.