Calderon v. Cruzate

175 A.D.3d 644

107 N.Y.S.3d 399

Santiago CALDERON, etc., Appellant,

v.Carlos CRUZATE, Sr., et al., Respondents, et al., Defendant.

2016–06774

Index No. 9569/12

Supreme Court, Appellate Division, Second Department, New York.

Argued—April 22, 2019

August 28, 2019

Sacks & Muccini, LLC, Douglaston, N.Y. (Edward J. Muccini of counsel), for appellant.

Kelly, Rode & Kelly, LLP, Mineola, N.Y. (Eric P. Tosca of counsel), for respondent Carlos Cruzate, Sr.

Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia and Glenn A. Kaminska of counsel), for respondent Port Jefferson Cesspool Service, Inc.

ALAN D. SCHEINKMAN, P.J., JEFFREY A. COHEN, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Arthur G. Pitts, J.), dated April 28, 2016. The order granted the separate motions of the defendants Carlos Cruzate, Sr., and Port Jefferson Cesspool Service, Inc., for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is reversed, on the law, with one bill of costs, and the separate motions of the defendants Carlos Cruzate, Sr., and Port Jefferson Cesspool Service, Inc., for summary judgment dismissing the complaint insofar as asserted against each of them are denied.

This action arises from tragic events that occurred on June 1, 2011. Edgar Ivan Calderon Castro (hereinafter Castro), who was 19 years old at the time, was visiting his friend Samuel Suarez at a home rented by Suarez's family. Castro, Suarez, and another teenager, Eduardo Fuentes, planned to build a campfire in the backyard of this home. In order to do so, they decided to move one of two pieces of cement in the backyard of the home which, unbeknownst to them, were cesspool covers. The cover they attempted to move was approximately 36 inches in diameter and approximately 3 inches thick, and weighed approximately 125 to 150 pounds. The cover was not buried beneath the surface of the ground.

According to Suarez, one side of the cover was higher than the other side, which made it possible for Suarez to get his fingers underneath the cesspool cover and lift one side of the cover up to his knees. Fuentes attempted to help Suarez lift the cover, and Fuentes fell into the cesspool below. The cover fell back onto the opening of the cesspool, but Suarez was able to move it to the side on his own. Fuentes managed to grab hold of the side of the cesspool, but then it appeared to Suarez that Fuentes "fell asleep." Suarez believed that Fuentes passed out due to fear, but the plaintiff's expert stated in an affidavit that he actually was asphyxiated by fumes resulting from hazardous chemicals that had been poured into the cesspool when it was serviced the day before.

Castro, in an attempt to rescue Fuentes, jumped into the cesspool after him. He was able to pick up Fuentes and hold a hose that Suarez threw into the cesspool, but then he too appeared to "fall asleep." Both Fuentes and Castro died from asphyxiation as a result of this incident.

The plaintiff, as administrator of Castro's estate, commenced this action to recover damages against Carlos Cruzate, Sr., the owner of the home rented by the Suarez family, Port Jefferson Cesspool Service, Inc. (hereinafter Port Jefferson Cesspool), which had serviced the cesspool the day before the incident, and Ignacio Suarez, the father of Samuel Suarez. A default judgment was entered against Ignacio Suarez. Cruzate and Port Jefferson Cesspool joined issue and separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court granted both motions in an order dated April 28, 2016. The plaintiff appeals.

We disagree with the Supreme Court's determination granting Cruzate's motion for summary judgment. "A landowner has a duty to maintain his or her premises in a reasonably safe manner" ( Tavarez v. Pistilli Assocs. III, LLC , 161 A.D.3d 1129, 1130, 77 N.Y.S.3d 450 ; see Behrens v. North Merrick Fruits, Inc , 148 A.D.3d 972, 973, 50 N.Y.S.3d 161 ). " ‘In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence’ " ( Haxhia v. Varanelli , 170 A.D.3d 679, 681, 95 N.Y.S.3d 351, quoting Lezama v. 34–15 Parsons Blvd., LLC , 16 A.D.3d 560, 560, 792 N.Y.S.2d 123 ; see Wilks v. City of New York , 144 A.D.3d 673, 674, 40 N.Y.S.3d 504 ). "[W]hether a dangerous or defective condition exists on the property of another so as to create liability ‘depends on the peculiar facts and circumstances of each case’ and is generally a question of fact for the jury" ( Trincere v. County of Suffolk , 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489, quoting Guerrieri v. Summa , 193 A.D.2d 647, 598 N.Y.S.2d 4 [citations omitted]; see Touloupis v. Sears, Roebuck & Co , 155 A.D.3d 807, 808, 63 N.Y.S.3d 518 ; Wilks v. City of New York, 144 A.D.3d at 674, 40 N.Y.S.3d 504 ).

Here, Cruzate established, prima facie, that the cesspool cover was not in a defective condition. He submitted, inter alia, a transcript of the deposition testimony of the principal of Port Jefferson Cesspool, who testified that when he serviced the cesspool the day before the incident, the cover was safe and functioning properly. Port Jefferson Cesspool's principal also testified that after he serviced the cesspool, he replaced the cover, checked to make sure it was in the same position as it had been earlier, and replaced the dirt that he had removed from around the cover.

In opposition, however, the plaintiff raised a triable issue of fact as to whether the cesspool cover was in a defective condition because Port Jefferson Cesspool had improperly replaced it after servicing the cesspool, enabling Suarez to get his fingers underneath the cover and lift it (see Pungello v. Window Network , LLC, 102 A.D.3d 850, 851, 958 N.Y.S.2d 729 ; Solomon v. Loszynski , 21 A.D.3d 366, 367, 800 N.Y.S.2d 46 ). The plaintiff submitted the affidavit of his expert, who opined that, on the date of the accident, the cover was not secure to the ground. According to the expert, there was soil between the cover and the cesspool, so that the cover did not rest firmly on the cesspool, which was a substantial factor in the deaths of Castro and Fuentes. Moreover, Cruzate testified that he hired Port Jefferson Cesspool to service the cesspool, supervised the work, observed Port Jefferson Cesspool lift the cesspool cover, and was present when the work was completed. Therefore, there are triable issues of fact as to whether Cruzate had actual or constructive...