Reitzel v. Derycke

218 A.D.3d 1334

195 N.Y.S.3d 828

Michael S. REITZEL, Plaintiff-Appellant,

v.Stuart DERYCKE and Jacklyn Derycke, Defendants-Respondents.

537

CA 22-01224

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

Entered: July 28, 2023

GILLETTE & IZZO LAW OFFICE, PLLC, SYRACUSE (JANET M. IZZO OF COUNSEL), FOR PLAINTIFF-APPELLANT.

COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (MAUREEN G. FATCHERIC OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

PRESENT: SMITH, J.P., LINDLEY, CURRAN, BANNISTER, AND OGDEN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is affirmed without costs.

Memorandum: Plaintiff commenced this premises liability action seeking damages for injuries he sustained when, while returning to his delivery truck after delivering a package at defendants’ home, he allegedly slipped and fell on the snow- and ice-covered gravel driveway and sustained a broken ankle. Plaintiff alleged, inter alia, that defendants were negligent because they maintained their driveway in such a manner whereby the area became icy, frozen, slippery and deteriorated with areas of uneven gravel under the icy surface. Plaintiff now appeals from an order granting defendants’ motion for dismissal of the complaint for failure to prosecute pursuant to CPLR 3216 and, in the alternative, for summary judgment dismissing the complaint pursuant to CPLR 3212. We deem the appeal to be taken from the judgment subsequently entered on that order inasmuch as plaintiff's notice of appeal from the order granting summary judgment is "deemed to specify a judgment upon said order entered after service of the notice of appeal and before entry of the order of" this Court ( CPLR 5501 [c] ).

Initially, we agree with plaintiff that, under the circumstances here, dismissal of the complaint pursuant to CPLR 3216 is not warranted, and we therefore substitute our discretion for that of Supreme Court in that regard. Even assuming, arguendo, that plaintiff failed to establish a justifiable excuse for any delay and a meritorious cause of action upon failing to comply with defendants’ 90-day demand (see CPLR 3216 [e] ), we note that "[a] court retains discretion to deny a motion to dismiss pursuant to CPLR 3216 even [under those circumstances]" ( Rust v. Turgeon , 295 A.D.2d 962, 963, 746 N.Y.S.2d 223 [4th Dept. 2002] ; see Castiglione v. Pisanczyn , 217 A.D.3d 1372, 190 N.Y.S.3d 751, 2023 N.Y. Slip Op. 03105, *1 [4th Dept. 2023] ; Hawe v. Delmar , 148 A.D.3d 1788, 1789, 50 N.Y.S.3d 777 [4th Dept. 2017] ; see generally Baczkowski v. Collins Constr. Co. , 89 N.Y.2d 499, 503-505, 655 N.Y.S.2d 848, 678 N.E.2d 460 [1997] ). Here, plaintiff's "participation in ongoing disclosure that occurred within the 90-day period ... negated any inference that [plaintiff] intended to abandon [the] action" ( Hawe , 148 A.D.3d at 1789, 50 N.Y.S.3d 777 [internal quotation marks omitted]; see Restaino v. Capicotto , 26 A.D.3d 771, 771-772, 808 N.Y.S.2d 879 [4th Dept. 2006] ). In addition, "[a]lthough there were some delays attributable to plaintiff's attorney and [her] law office both before and after the 90-day demand," we conclude that "[t]here is no parallel between the circumstances of the instant case and those where CPLR 3216 dismissals have been justified based on patterns of persistent neglect, a history of extensive delay, evidence of an intent to abandon prosecution, and lack of any tenable excuse for such delay" ( Hawe , 148 A.D.3d at 1789, 50 N.Y.S.3d 777 [internal quotation marks omitted]).

We nonetheless affirm the judgment on the alternative ground that the court properly granted that part of defendants’ motion for summary judgment dismissing the complaint. At the outset, we note that plaintiff does not contend on appeal that defendants created the particular icy condition at that location on the day of his fall, nor does plaintiff contend that defendants had actual or constructive notice of the specific slippery condition upon which plaintiff fell on the day of the incident. Instead, plaintiff contends on appeal only that the court erred in granting that part of defendants’ motion seeking summary judgment insofar as the complaint, as amplified by the bill of particulars, alleges that defendants had actual knowledge of an ongoing, recurring dangerous condition in the area of his fall—i.e., that defendants allowed dips and grooves to exist on the gravel driveway on which accumulated snow would melt and freeze as ice in the depressions, and thus that defendants could be charged with constructive notice of the specific recurrence of that condition. Plaintiff has therefore abandoned any other theories of liability (see Monnin v. Clover Group, Inc. , 187 A.D.3d 1512, 1513, 132 N.Y.S.3d 194 [4th Dept. 2020] ).

Defendants nevertheless argue that plaintiff improperly sought to defeat that part of their motion for summary judgment by asserting the recurring dangerous condition theory as a new theory of liability for negligence for the first time in opposition to the motion. Contrary to defendants’ argument, however, we agree with plaintiff that "the recurring dangerous condition theory was ‘readily discernable’ from the allegations set forth in [his complaint and] bill of particulars" ( id. at 1514, 132 N.Y.S.3d 194 ). Thus, with respect to the only theory of liability raised both in opposition to the motion and on appeal, it is well settled that "[a] defendant who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of the condition" ( id. at 1513, 132 N.Y.S.3d 194 [internal quotation marks omitted]; see Wesolek v. Jumping Cow Enters., Inc. , 51 A.D.3d 1376, 1378, 857 N.Y.S.2d 859 [4th Dept. 2008] ).

Here, we conclude that defendants met their initial burden of establishing that they did not have actual knowledge of any ongoing and recurring dangerous condition. Although defendant Stuart Derycke acknowledged during his deposition that snow removal efforts could displace gravel thereby requiring that he rake stone back into the driveway during the spring, defendants each averred in their affidavits submitted in support of the motion that there were no holes or depressions in the driveway and that, prior to plaintiff's fall, they had not received any complaints, violations or citations regarding the condition of the driveway or any complaints about snow or ice on the property (see Navetta v. Onondaga Galleries LLC , 106 A.D.3d 1468, 1468-1469, 964 N.Y.S.2d 835 [4th Dept. 2013] ; cf. Chrisler v. Spencer , 31 A.D.3d 1124, 1125, 817 N.Y.S.2d 835 [4th Dept. 2006] ; see also Evans v. Old Forge Props., Inc. , 213 A.D.3d 1361, 1362, 181 N.Y.S.3d 923 [4th Dept. 2023] ; see generally Gordon v. American Museum of Natural History , 67 N.Y.2d 836, 837-838, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ).

We further conclude that plaintiff, in opposition to the motion, failed to raise a triable issue of fact with respect to whether defendants had actual knowledge of an ongoing and recurring dangerous condition (see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). In particular, plaintiff's assertion that the accident was caused by a recurrent dangerous condition of which defendants had actual knowledge, i.e., the existence of potholes, grooves and dips on which snow would accumulate, melt, and freeze into ice, "is unsupported by any competent evidence, and rests instead on the conclusory, unsubstantiated, and...