October 3, 2011
Illuminado Pastoriza as Administrator of the Estate of MARIBEL PASTORIZA, and ILLUMINADO PASTORIZA, Individually, Plaintiffs,
The New York City Housing Authority, and AMERICAN SECURITY SYSTEMS, INC., , Defendants.
Rosenbaum & Rosenbaum, PC Attorneys for Plaintiff
Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP Attorneys for Third-Party Defendant
Neil R. Finkston Herzfeld & Rubin, PC Attorneys for Defendant
Anil C. Singh, J.
In this wrongful death action, plaintiff Illuminado Pastoriza (Pastoriza) alleges that defendants New York City Housing Authority (NYCHA) and American Security Systems, Inc. (ASSI) were negligent in maintaining the intercom system in his apartment building and, as a result, emergency medical personnel were unable to get to his apartment in time to save the life of his wife after she suffered an asthma attack. Defendant NYCHA moves for summary judgment dismissing the complaint and any cross claims against it (seq. # 004). By separate motion (seq. No. 003), defendant/third-party defendant ASSI also moves for summary judgment dismissing the complaint, the third-party complaint, and any cross claims against it. The motions are consolidated for purposes of their disposition.
On June 19, 2006, and for approximately 15 years prior to that date, Pastoriza and his now deceased wife, Maribel Pastoriza, resided in Apartment 6A, at 140 Columbia Street, on the lower east side of Manhattan (the building). Pastoriza Dep., Ex. C to Finkston Aff. in Support of NYCHA's Motion (Finkston Aff.), at 9. The 14-story building is part of a public housing development, known as the Baruch Houses, owned and operated by NYCHA. Dep. of Henry Thompson (Thompson Dep.), Ex. L to Finkston Aff., at 8. At the front entrance to the building, which had a door with a lock, an intercom system was installed, permitting residents to "buzz" visitors into the building. Access to the building was also possible through the front entrance of an adjoining building located at 130 Columbia Street, which connected to 140 Columbia Street and shared the intercom system. 50-H Hearing, March 14, 2007, Ex. B to Finkston Aff., at 32.
The intercom system connected each apartment to the front entrance door using telephone lines installed in each tenant's apartment. Dep. of Robinson Milsois (Milsois Dep.), Ex. J to Finkston Aff., at 38. The intercom had a "lobby panel" with a speaker, a microphone, and a keypad, which allowed a visitor to call a resident. Id. at 29-31. To operate the intercom, a visitor pressed numbers on the keypad which corresponded to a code assigned to each apartment. Id. at 32. After dialing the code, the visitor heard a ringing sound, and then would be able to hear the person inside the apartment who answered the call. Id. at 32-33. To answer the intercom, a tenant needed to pick up a telephone connected to the intercom, and, after speaking to the person seeking entry, the tenant could open the front door by pressing "9, " which released the front door lock. Id. at 33-35. A beeping sound indicated to the visitor that the door was unlocked. Id. at 33.
Defendant ASSI had a contract with NYCHA (the contract), commencing on or about April 1, 2006, to provide service and maintenance of the intercom systems at various NYCHA developments and buildings, including the building at 140 Columbia Street. See Requirement Contract, Ex. G to Thompson Aff. in Support of ASSI's Motion for Summary Judgment (Thompson Aff.); Dep. of Freeman Grady (Grady Dep.), Ex. T to Gammons Aff. in Opp. to Defendants' Motions (Gammons Aff.), at 97-98. The intercom system was installed by another company some years before ASSI entered into the contract with NYCHA. Grady Dep., at 91-92. The contract provided that ASSI "shall provide service and repair... to maintain the intercom systems in properly functioning and good condition." See Thompson Aff., ¶ 12; Requirement Contract, Specifications, § III (A). The contract further set out the procedures for ASSI to be notified of, and to respond to, requests for repairs, and required ASSI to make quarterly visits to inspect the intercom systems. See Thompson Aff., ¶ 13; Requirement Contract, Specifications, § V; Milsois Dep., at 40-41, 45-46.
According to ASSI technician Robinson Milsois (Milsois), the quarterly service visits generally included inspection of intercom components located in the basement of the building, to check that the system as a whole was operational, followed by a test of the front entrance intercom components. Milsois Dep., at 63-64, 77-79. The front entrance intercom was tested by randomly calling a tenant, to check that the microphone, speaker, and keypad were working, and that the buzzer opened the door. Id. at 74-75. If a technician found a problem during a quarterly inspection, the technician would fix the problem (id. at 92), and any repairs that were done would be noted on the service record. Id. at 67, 81. The same procedure was repeated at every building to be serviced. Id. at 76.
On May 16, 2006, ASSI conducted a quarterly inspection of the intercom system in the building, as well as the systems in all other buildings in the Baruch Houses development. See Intercom Service Authorization, Ex. K to Finkston Aff.; Milsois Dep., at 48-49. The service order reflecting the May 16, 2006 inspection indicates that technician Andrew Holder "performed quarterly service on entire development" and "all tested ok." See Service Order, Ex. K to Finkston Aff.; Milsois Dep., at 49-50, 71. Milsois testified that "tested ok" meant that all intercom components were working (id. at 85), that one could talk and listen on the intercom and buzz the door (id. at 71), and that no problems were found. Id. at 82. Records show that Holder started the inspection at 8:30 a.m. and completed it at 12:00 noon. See Service Order, Ex. K to Finkston Aff.; Milsois Dep., at 83.
Shortly after midnight on June 19, 2006, when he and his wife were in their apartment, Pastoriza discovered that his wife was having an asthma attack. When he saw that she continued to struggle to breathe, even after using her inhaler, he called 911. 50-H Hearing, March 14, 2007, at 18, 20; Pastoriza Dep., at 18-20. Pastoriza testified that he made the call to 911 about four to five minutes after his wife began having trouble breathing, at about 12:15 a.m. 50-H Hearing, March 14, 2007, at 20-21; Pastoriza Dep., at 19-20. Call records submitted by the parties show that the call was received at about 12:34 a.m. See FDNY Call Report, Ex. V to Gammons Aff. in Opp.; Pastoriza Dep., at 70. After he made the 911 call, Pastoriza called his wife's daughter, Maria, spoke to her for "less than a minute, " (id. at 59-60), and then noticed that his wife was not breathing. Id. at 60. Minutes later, at about 12:50 a.m., he called 911 a second time, to find out where the ambulance was. Id. at 62-63, 71. Plaintiff did not recall how long after the second call emergency medical workers arrived at his apartment (id. at 65-66), but Fire Department records indicate that emergency medical workers arrived at plaintiff's apartment while he was on the telephone. Id. at 71; see FDNY Call Report, Ex. V to Gammons Aff. in Opp.
Emergency medical service (EMS) workers dispatched from New York Downtown Hospital were the first emergency medical workers to reach plaintiff's apartment on June 19, 2006. See Ambulance Call Report, Ex. Q to Finkston Aff.; Dep. of Jason Morrissey (Morrissey Dep.), Ex. P to Finkston Aff., at 12, 73-74. Subsequently, FDNY emergency medical technicians (EMTs) arrived. Jason Morrissey, then an FDNY EMT, testified that he and his partner received a call at 12:57 a.m., on June 19, 2006, to respond to an emergency at plaintiff's address, and when they arrived at the building, they saw that EMS workers from New York Downtown Hospital were already there. Morrissey Dep., at 12. Morrissey testified that they assisted the EMS workers with CPR, and then brought plaintiff's wife by ambulance to Beth Israel Hospital (id. at 49-50, 82-83), where she died on June 23, 2006.
Morrissey also testified that he encountered a problem trying to get into the building; the front door was locked, and when he entered the numbers for plaintiff's apartment on the keypad, he heard a dial tone, but it did not connect, and no one answered his call. Id. at 37-40. About 10-15 seconds later, as he was about to request a "call back" from the dispatcher, someone exiting the building let Morrissey and his partner into the building. Id. at 41-42. Morrissey stated that he had previously encountered problems with the intercom on other visits to the building, and that during five or six visits to the building in 2006, he had once encountered a similar problem. Id. at 15-16, 65-66, 87, 101-103. He did not recall what month that incident was, and he did not report that problem, or any other problems with the intercom, to NYCHA or to anyone else. Id. at 66, 17-18.
Plaintiff testified that, in June 2006, the intercom at the building was working, and he did not know if there was any time in June 2006 that it was not working. 50-H Hearing, Oct. 19, 2006, Ex. E to Gammons Aff. in Opp., at 14. He also testified that sometimes the intercom did not function properly, and he could not hear people calling, but he did not remember when, or whether it was days, weeks, months, or years before June 19, 2006. 50-H Hearing, March 14, 2007, Ex. B to Finkston Aff., at 29-30. He never reported any problems with the intercom, or with the door lock, to NYCHA, or to other tenants, and he heard no complaints from other tenants. Id. at 30, 33.
Plaintiff, individually and as administrator of his wife's estate, commenced this action against defendant NYCHA in September 2007. NYCHA commenced a third-party action against ASSI in November 2007, and plaintiff subsequently commenced a separate action against ASSI in June 2008, which was consolidated into this action.Both NYCHA and ASSI now move for summary judgment.
It is well settled that to prevail on a motion for summary judgment, the movant must establish the cause of action or defense, by submitting evidentiary proof in admissible form, "sufficiently to warrant the court as a matter of law in directing judgment." CPLR 3212 (b); see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 (1986); Zuckerman v City of New York, 49 N.Y.2d 557, 562 (1980). Once such showing has been made, to defeat summary judgment, the opposing party must, also by submitting evidentiary proof in admissible form, "establish the existence of material issues of fact which require a trial of the action." Alvarez, 68 N.Y.2d at 324; see Zuckerman, 49 N.Y.2d at 562. The evidence must be viewed in a light most favorable to the nonmoving party (Branham v Loews Orpheum Cinemas, Inc., 8 N.Y.3d 931, 932 ), and the motion must be denied if there is any doubt as to the existence of a triable issue of fact. See Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957). However, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise a material question of fact. Zuckerman, 49 N.Y.2d at 562; see Santoni v Bertelsmann Prop., Inc., 21 A.D.3d 712, 714 (1st Dept 2005).
NYCHA'S MOTION FOR SUMMARY JUDGMENT
Defendant NYCHA moves for summary judgment dismissing the complaint and all cross claims against it on the grounds that it did not create, and had no actual or constructive notice of, the alleged defect in the intercom system of the building. NYCHA also contends that dismissal is warranted because there is only speculative evidence that any alleged negligence caused the death of plaintiff's wife.
A property owner has a duty to maintain its property "in a reasonably safe condition in view of all the circumstances" so as to prevent foreseeable injuries to others on the premises. Basso v Miller, 40 N.Y.2d 233, 241 (1976); see Peralta v Henriquez, 100 N.Y.2d 139, 144 (2003). To recover damages for injuries caused by an alleged breach of this duty, a plaintiff must establish that a defective condition existed and that the property owner created the condition or had actual or constructive notice of the condition. See Juarez v Wavecrest Mgt. Team Ltd., 88 N.Y.2d 628, 646 (1996); Mandel v 370 Lexington Ave., LLC, 32 A.D.3d 302, 303 (1st Dept 2006); Beck v J.J.A. Holding Corp., 12 A.D.3d 238 (1st Dept 2004); Perez v Bronx Park S. Assocs., 285 A.D.2d 402, 403 (1st Dept 2001). The plaintiff also "must show that the defendant's negligence was a proximate cause of the injuries." Haseley v Abels, 84 A.D.3d 480, 482 (1st Dept 2011); see generally Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 315 (1980).
"Actual notice may be found where a defendant either created the condition, or was aware of its existence prior to the accident." Atashi v Fred-Doug 117 LLC, 87 A.D.3d 455, 455 (1st Dept 2011), citing Lewis v Metropolitan Transp. Auth., 99 A.D.2d 246, 249 (1st Dept), affd 64 N.Y.2d 670 (1984). "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 the defendant's employees to discover and remedy it." Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837 (1986); see Rivera v 2160 Realty Co., 4 N.Y.3d 837, 838 (2005); Perez, 285 A.D.2d at 403. Further, "[t]he notice must call attention to the specific defect or hazardous condition and its specific location, sufficient for corrective action to be taken." Mitchell v New York Univ., 12 A.D.3d 200, 201 (1st Dept 2004); see Gordon, 67 N.Y.2d at 838.
While a plaintiff may be able to demonstrate constructive notice by producing "evidence that an ongoing and recurring dangerous condition existed in the area of the accident which was routinely left unaddressed by the landlord" (O'Connor-Miele v Barhite & Holzinger, Inc., 234 A.D.2d 106, 106-107 [1st Dept 1996]), "a general awareness' that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused plaintiff's [injury]." Piacquadio v Recine Realty Corp., 84 N.Y.2d 967, 969 (1994); see Torres v New York City Hous. Auth., 85 A.D.3d 469, 469-470 (1st Dept 2011); Lance v Den-Lyn Realty Corp., 84 A.D.3d 470, 470-471 (1st Dept 2011). Evidence must show awareness of a specific recurring dangerous condition, which was more than intermittent, which had not been resolved, and which was in the same area where the accident occurred. See Love v New York City Hous. Auth., 82 A.D.3d 588 (1st Dept 2011); Meza v 509 Owners LLC, 82 A.D.3d 426 (1st Dept 2011); Martinez v Hunts Point Coop. Mkt., Inc., 79 A.D.3d 569, 571 (1st Dept 2010); Mauge v Barrow St. Ale House, 70 A.D.3d 1016 (2d Dept 2010); Joseph v New York City Tr. Auth., 66 A.D.3d 842 (2d Dept 2009).
In support of its motion, NYCHA submits evidence, including deposition testimony of plaintiff, defendants' employees, and non-party Jason Morrissey, as well as a transcript of a 50-H hearing, and other documents, sufficient to make a prima facie showing that it neither created nor had actual or constructive knowledge of the intercom defect allegedly existing on June 19, 2006. In opposition, plaintiff fails to demonstrate through admissible evidence that there are material issues of fact requiring a trial.
Plaintiff admittedly never informed defendants of any alleged defective condition, and produced no evidence that notice was received from any other source. See Rodriguez v 520 Audubon Assocs., 71 A.D.3d 417 (1st Dept 2010) ; Casado v OUB Houses Hous. Co., 59 A.D.3d 272 (1st Dept 2009). Although he claimed that there were prior problems with the intercom, he could not remember when, and he provided no evidence to show what the earlier problems were, what the specific intercom defect was on June 19, 2006, or how long that defect had existed prior to the incident. See Casado, 59 A.D.3d at 272. At his deposition, plaintiff testified that he never complained to anyone at NYCHA about the intercom, and he did not know anyone else who did; he did not complain to other tenants, and no tenants complained to him. Pastoriza Dep., at 50-51, 33. He also testified that he was not aware of any problems with the intercom during the 24 hours before he called 911 on June 19, 2006, and no one told him about any problems during that time. Id. at 45-46. Although he stated that he had some problems with the front door lock, approximately 5-10 times during the 15 years that he lived in the building, he had no problems with the front door lock the day prior to the incident. Id. at 48. He did not know if the intercom phone in his apartment was working on June 19, but it did not ring during the time that he was waiting, or before emergency workers arrived at his apartment. Id. at 23, 63. He also did not know whether the EMS workers had a problem with the intercom or entering through the front entrance, or whether they dialed his apartment number. Id. at 67.
EMT Morrissey, who arrived at the building after EMS workers were already inside the building, testified that the intercom was not working when he arrived, and that a person leaving the building let him in. Morrissey Dep., at 13-14, 16-17. Although there is some evidence that the first EMS workers also may have encountered a problem getting into the building (see Morrissey Dep., at 23-24, 58-59; Dispatch Report, Ex. S to Finkston Aff.), there is no testimony or any other evidence to show what, if any, problem was encountered by the first EMS workers, and how they entered the building.  Morrissey testified that he did not know whether the first EMS workers to arrive at the building encountered a problem with the intercom. Id. at 54, 56.
Contrary to plaintiff's contention, a document showing that a tenant made a complaint about the intercom on May 11, 2006, does not raise a triable issue of fact as to whether defendants had actual notice. See Work Request, Ex. S to Gammons Aff. in Opp. The document produced by NYCHA, a work ticket, shows that a complaint was made by a tenant that the intercom was "out of order." Id. Freeman Grady, an assistant superintendent at the Baruch Houses in 2006, testified that the work ticket indicated that it was assigned to maintenance, and was dispositioned, but the ticket did not clearly show whether work was completed. Freeman Dep., Ex. T to Gammons Aff. in Opp., at 76, 78-81. ASSI technician Milsois also testified that he did not know whether ASSI received the work ticket or otherwise was notified about the complaint. Milsois Dep., at 112-114. However, while the work ticket is unclear about what the problem was, and how or if it was resolved, it is not disputed that five days later, on May 16, 2006, ASSI performed a quarterly inspection of the building's intercom system and found all components, including the front entrance lobby panel, to be functioning. See id. at 49-50, 71, 85; Service Order, Ex. K to Finkston Aff. Plaintiff offers no evidence to refute the evidence that the intercom system was working on May 16, 2006, and does not dispute that no complaints about the intercom were received by NYCHA or ASSI between May 16 and June 19, 2006. See Aff. of Cedric Hercules, Ex. O to Finkston Aff. in Support.
Further, plaintiff's counsel's speculation that the amount of time spent on performing the inspection "should raise some doubt" about the adequacy of the inspection (see Gammons Aff. in Opp., ¶ 76), also is insufficient to defeat summary judgment. See Nelson v Cunningham Assocs., L.P., 77 A.D.3d 638, 640 (2d Dept 2010); Shivers v Fishman, 280 A.D.2d 355, 355 (1st Dept 2001). "Bald conclusory assertions, even if believable, are not enough [to defeat summary judgment]." Capelin Assocs., Inc. v Globe Mfg. Corp., 34 N.Y.2d 338, 342 (1974) (internal citation and quotation marks omitted). Moreover, records of the inspection show that it took the technician about three and a half hours to complete his inspection of the 17 buildings in the Baruch Houses project. According to ASSI technician Milsois, the length of an inspection can vary, depending on whether repairs are needed (Milsois Dep., at 84), but, based on his experience, each building can take about ten minutes (id. at 124), which corresponds to the amount of time taken to conduct the May 2006 quarterly inspection. Plaintiff offers nothing to refute Milsois's testimony, or to otherwise raise a question about whether the inspection was not done in a usual and customary manner.
Plaintiff also argues, relying chiefly on his own testimony and that of EMT Morrissey, that constructive notice can be demonstrated based on evidence of a recurring condition. Plaintiff testified that he was aware of prior problems with the intercom, but he could not recall whether the problems occurred days, weeks, or months before June 19, 2006, and he did not specify what the problems were. He further testified that, as far as he knew, the intercom was working the day before June 19, 2006. While Morrissey testified that, in about 20 prior visits to the building over about five years, he encountered various problems with the intercom about half the time, and once in 2006, he encountered a problem like the one on June 19, 2006 (id. at 15, 102-103, 65-66), he never reported or noted, or otherwise spoke to anyone, about any intercom problems. Id. at 17-18, 19, 24-25, 108. Thus, even if NYCHA had a "general awareness" that there were prior problems with the intercom, the evidence here does not raise a material issue of fact about whether the problem on June 19 was a specific recurring condition routinely left unaddressed by NYCHA. See Love, 82 A.D.3d at 588; Martinez, 79 A.D.3d at 571; Rodriguez, 71 A.D.3d at 417; Joseph, 66 A.D.3d at 843-844.
Even assuming that there are questions about whether the intercom was functioning properly on June 19, 2006, and viewing the evidence in a light most favorable to plaintiff, as the court must, evidence is insufficient to demonstrate triable issues of fact as to whether NYCHA had actual or constructive notice of the alleged intercom defect. See Love, 82 A.D.3d at 588; Meza, 82 A.D.3d at 427; Wellington v Manmall, LLC, 70 A.D.3d 401 (1st Dept 2010); Mack v New York Yankees Partnership, 69 A.D.3d 542, 542 (1st Dept 2010); Joseph, 66 A.D.3d at 843-844; Casado, 59 A.D.3d at 272.
In view of the above, the court does not reach the issue of proximate cause. It notes, however, that, contrary to NYCHA's claim, there is authority in the First Department that an affidavit of an expert, not previously disclosed in pre-trial discovery, will be considered on a summary judgment motion. See Baulieu v Ardsley Assocs., L.P., 85 A.D.3d 554, 555 (1st Dept 2011); Downes v American Monument Co., 283 A.D.2d 256, 256 (1st Dept 2001); Nunez v Consolidated Edison of NY, 2010 WL 3740642, 2010 NY Misc. LEXIS 4583, 2010 NY Slip Op 32608(U) (Sup Ct, NY County 2010); Diop v Madison Immobilier LLC, 2009 WL 1915703, 2009 NY Misc. LEXIS 5911, 2009 NY Slip Op 31423(U) (Sup Ct, NY County 2009); see also Mauro v Rosedale Enters., 60 A.D.3d 401 (1st Dept 2009) (noting Second Department cases to the contrary but leaving issue undecided); compare Construction by Singletree, Inc. v Lowe, 55 A.D.3d 861 (2d Dept 2008). Nonetheless, here, the affidavit of plaintiff's expert is not based on established facts and, therefore, has little probative value. See Cassano v Hagstrom, 5 N.Y.2d 643, 646 (1959) (opinion must be based on facts in the record or personally known to the witness, not on assumptions not supported by evidence); Brown v Bauman, 42 A.D.3d 390, 392 (1st Dept 2007); Santoni, 21 A.D.3d at 715; Wright v New York City Hous. Auth., 208 A.D.2d 327, 331 (1st Dept 1995).
ASSI'S MOTION FOR SUMMARY JUDGMENT
ASSI moves for summary judgment dismissing the complaint and third-party complaint on the grounds that it breached no duty to plaintiff, that it performed its obligations under its contract with NYCHA, and that it did not create or have actual or constructive notice of the alleged intercom defect. For the reasons stated above, ASSI is entitled to summary judgment.
Assuming for purposes of this motion that ASSI owed a duty directly to plaintiff (see generally Espinal v Melville Snow Contrs., Inc., 98 N.Y.2d 136, 139-140 ; see Caroline A. ex Rel Marianela A. v New York City Hous. Auth., 23 Misc.3d 1135[A], *13-14, 2009 NY Slip Op 51111[U] [Sup Ct, Bronx County 2009]; but see Chunn v New York City Hous. Auth., 83 A.D.3d 416, 417 [1st Dept 2011]), ASSI has demonstrated that it performed its obligations under the contract, that it inspected the intercom on May 16, 2006, and found it to be properly working, and that it did not receive any complaints or requests for repairs between May 16 and June 19, 2006. Plaintiff submits no evidence to raise a triable issue of fact about whether the inspection conducted on May 16, 2006 was inadequate or negligently performed. Nor is there any evidence to suggest that the intercom was not working at that time that ASSI performed its inspection. There also is no dispute that, following the inspection, and prior to June 19, no complaints were made to ASSI about the intercom. As similarly noted above, plaintiff's counsel's assertion that it is "almost inconceivable" that ASSI's technician could have inspected 17 buildings in three and a half hours is insufficient, absent any legal or factual support, to raise a triable issue of fact as to whether the inspection was properly done.
With respect to the branch of ASSI's motion seeking dismissal of the third-party complaint and cross claims, NYCHA submits no opposition.
It is therefore
ORDERED that NYCHA's motion for summary judgment is granted, and the complaint and any cross claims against it are dismissed; and it is further
ORDERED that ASSI's motion for summary judgment is granted, and the complaint, the third-party complaint, and any cross claims against it are dismissed; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly, together with costs and disbursements as taxed by the Clerk upon submission of an appropriate bill of costs.