CPY Document - Unified Court System

SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
Present:
RON. GEOFFREY J. O'CONNELL
Justice
EUGENE BERNSTEIN and CHERYL BERNSTEIN
TRI/IS, PART 4
NASSAU COUNY
Plaintiff(s),
INEX No. 10837/05
PORT WASHINGTON TENNS ACADEMY, INC.
RACANLLI CONSTRUCTION RESIDENTIA CORP.,
RACANLLI CONSTRUCTION COMPAN, INC.
EUGENE RACANLLI GENERA CONSTRUCTION
AN CONSTRUCTION MAAGEMENT , NICHOLAS
RACANLLI CONSTRUCTION , L.C. and SISTO DE
NARIS CONJRACTING CORP. , AJ.
CONSTRUCTION CORP.
MOTION DATE: 9/24/07
MOTION SEQ. No. 6-
Defendant(s).
RACANLLI CONSTRUCTION RESIDENTIA
CORP., RACANLLI CONSTRUCTION COMPAN,
INC., and NICHOLAS RACANLLI CONSTRUCTION, L.C.
-against-
-against-
McNERNY BASMAJIA,
Third-Par Plaintiff(s),
Third-Par Defendant(s).
The following papers read on this motion:
Port Washington Notice ofMotion/Affirmation/xhibits
Racanell Affrmation in Opposition
Sisto De Nardis Affrmation in Opposition
Plaintiff Affrmation in Opposition

lnc.. et al.
Bernstein v. Port Washington Tennis Academv.
In this action Plaintiff EUGENE BERNSTEIN seeks damages for injuries allegedly sustained due to
TENNS ACADEMY, the
owner ofthe
the negligence ofthe defendants. Defendant PORT WASHINGTON
parking lot where the underlying accident and injur occured , seeks an Order granting it summar judgment.
Plaintiff, RACANLLI and SISTO DE NARIS CONTRACTING oppose.
Defendants RACANLLI CONSTRUCTION RESIDENTIA CORP . , RACANLLI CONSTRUCT-
ION COMPAN, INC., NICHOLAS RACANLLI CONSTRUCTION LLC, and SISTO DE NARIS
CONTRACTING CORP. previously sought sumar judgment dismissing all claims asserted against them.
Those applications were Denied. Third Pary McNERNY BASMAIA also seeks sumar judgment
dismissing the third-par action. That application was grant yd.
timeliness of the
Counsel for the plaintiff and co-defendants oppose the motion on the issue of
ofthe certification order of this Cour,
application. He notes that counsel for the movant acknowledged receipt
dated July 2006, which directed that all motions for sumar judgment were to be made no later than sixty
days from the filing ofthe Note oflssue.
It is undisputed that the motion is untimely, as it was made more than 60 days after the filing and
offered for the delay. Furer, the matter appears on
service ofthe Note oflssue. No explanation or excuse is
the tral calendar.
, and, by representatives from their
Counsel for all paries appeared for the certification conference
offces, acknowledged that a Note of Issue was to be fied within 90 days, and any pary seeking to make a
sumar judgment motion must do so within 60 days of such filing. The motion is , therefore , untimely.
Based on the proof presented, including the fact that no reasonable explanation for the delay is offered,
3212(a);
as untimely CPLR
and the matter curently appears on a tral
calendar, the motion is Denied
Bril v. City of New York 2004 N.Y. Lexis 1526 (2004).
Furher, the defendant's motion is Denied on the merits.
ofincident he fell though
At his deposition plaintiff EUGENE BERNSTEIN testified that on the date
, but his
an open manole in the parking lot after exiting his car. He testified that both legs fell into the hole
left leg was parially wedged between the
parially overtured manole cover.

Bernstein v. Port Washington Tennis Academv.
lnc.. et al.
Ronald Aret testified on behalf of RACANLLI. Mr. Aret testified that he was the field supervisor
who oversaw the project on behalf of RACANLLI
, and answered to the owner durng the project. He
testified that he supervised the construction
ofthe parking lot and the drainage system.
Mr. Aret fuer testified that he was on site regularly and in the weeks prior to the accident he never
saw any problem with any of the manholes , nor did he see any manole coned off from the public.
s for deposition. Richard Zausner, a principal.
PORT WASHINGTON produced two principal owner
of the propert owner, testified that he personally contacted RACANLLI in the fall or winter, prior to the
accident, regarding problems in the fitting ofthe subject manole cover and assembly. Mr. Zausner testified
that Mr. Aret assured him that RACANLLI would take care of the problem, and later assured him that the
problem had been taken care of. (PlaintiffExh. G)
Another principal of TENNS ACADEMY, Susan Krowitz, testified that durng the same period, prior
to plaintiffs accident she met with Aret and discussed the subject manole cover and assembly. She also
RACANLLI. She
testified that the parking spaces in this area were blocked by an apparatus provided by
testified that the apparatus was removed prior to the date of the accident.
At his deposition plaintifftestified that he was scheduled for a business meeting with the ACADEMY
on the date of incident , parked his car and stepped on the manole cover a few steps from his car on the way
to the building. He testified that the cover flpped over and strck BERNSTEIN behind the knees on both legs
causing him to fall into the manole , resulting in permanent injures. (Opposition,
Exh. I)
The plaintiff argues that based on all ofthe paries ' deposition testimony there is a question of fact in
dispute whether the propert owner had actual and constrctive knowledge of a problem and failed to correct
, thus breaching a common law and contractual duty.
The Cour agrees.
Plaintiff argues that the proof presented demonstrates an issue of fact whether the property owner , the
PORT WASHINGTON TENNS ACADEMY had actual and/or constrctive knowledge ofthe
problem and
did not have it repaired in a reasonable time , creating an uneasonable risk of har to persons using the
parking lot. Church v. Callanan Industries Inc. 99 NY2d 104 (2002).

Bernstein v. Port Washington Tennis Academy. Inc.. et al.
The uncontested evidence demonstrates that the principals of the TENNS ACADEMY were made
aware of the complained of dangerous condition, and had an opportunty to direct replacement of the assembly
in question, or block access to the area. Whether they did so in a reasonable period oftime is a question for
tral. A omissionH. R. Moch Co. v. Rensselear
trier of fact could determine that the inaction is a wrong by
247 NY 160 (1928). The Cour finds that there is a question of whether the TENNS ACADEMY breached
its duty to maintain the safety of the premises, specifically the manole cover/assembly in issue.
Servicemaster Management Services Corp.,
83 NY2d 579 (1994).
Thus, based on the proof presented, the motion is Denied.
It is, SO ORDERED.
Palka
Dated:
IUI/
. O'CONNLL, J.
ENT
DtC 0 :3 2001
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