Caputo v Palermo, Palermo, & Tuohy, P.C

Caputo v Palermo, Palermo, & Tuohy, P.C.2013 NY Slip Op 31543(U)

July 2, 2013Sup Ct, Suffolk County

Docket Number: 08-45481Judge: Arthur G. Pitts

Republished from New York State Unified CourtSystem's E-Courts Service.

Search E-Courts (http://www.nycourts.gov/ecourts) forany additional information on this case.

This opinion is uncorrected and not selected for officialpublication.

SHORT FORM 0 R l ) l i R INDEX NO. 08-4548 1 CAL. NO. 12-016860T

SUPREME COURT - STATE OF NEW YORK I.A.S. PART 43 - SUFFOLK COUNTY

P R E S E N T :

Hon. ARTHUR G. PITTS Justice of the Supreme Court

SUSANNE CAPUTO,

Plaintiff, [

- against -

PALERMO, PALERMO, & TUOHY, P.C.,

cow MOTION DATE 1-24- 13 ADJ. DATE 4-1 8-13 Mot. Seq. # 001 - MD

CARTIER, BERNSTEIN, AUERBACH and DAZZO, P.C. Attorney for Plaintiff’ 100 Austin Street, Building 2 Patchogue, New York 1 1772

MARAGNO LAW, PLLC Attorney for Defendant 100 Park Avenue, Suite 1600 New York, New York 100 17

Upon the following papers numbered 1 t o x r e a d on this motion to dismiss and summary iudgment ; Notice of Motion/ Order to Show Cause and supporting papers I - 37 ; Notice of Cross Motion and supporting papers -; Answering Affidavits and supporting papers 40 - 65 ; Replying Affidavits and supporting papers 66 - 76 ; Other memorandum of law 38 - 39 ; (ad 1 it is,

ORDERED that the motion by the defendant Palermo, Palermo & Tuohy, P.C. for an order pursuant to CPLR 32 1 1 (a) (7), dismissing the complaint, or in the alternative, pursuant to CPLR 32 12 granting summary judgment dismissing the complaint, is denied.

This action was commenced to recover damages allegedly sustained by the plaintiff as the result of the failure of the defendant Palermo, Palermo & Tuohy, P.C. to properly prosecute a personal injury claim on her behalf. In her complaint, the plaintiff alleges that the defendant failed to file a timely notice of claim with, or to timely commence an action against, the company responsible for her injuries, and that she is now barred from commencing an action against said company. It is undisputed that the plaintiff retained the defendant to prosecute her claim, and that the attorney responsible to handle her case, Steven Palermo (Palermo), did not file a notice of claim or commence an action on her behalf. It is also undisputed that the plaintiffwas injured onNovember 10,2005, when she fell approximately two and one half to three feet from a rock climbing wall while on a cruise ship operated by Royal Carribean International (RCI.)

[* 1]

Caputo v Palermo, Palermo & Tuohy, P.C. Index No. Page 2

The defendant now moves for an order dismissing the complaint pursuant to CPLR 321 1 (a) (7), or in the alternative, pursuant to CPLR 3212 granting it summary judgment. Pursuant to CPLR 321 1 (a) (7), pleadings shall be liberally construed, the facts as alleged accepted as true, and every possible favorable inference given to plaintiffs (Leon v Martinez, 84 NY2d 83, 614 NYS2d 972 [ 19941). On such a motion, the Court is limited to examining the pleading to determine whether it states a cause of action (Guggenlieimer v Cinzburg, 43 NY2d 268,401 NYS2d 182 [1977]). In examining the sufficiency of the pleading, the Court must accept the facts alleged therein as true and interpret them in the light most favorable to the plaintiff (Pacific Carlton Development Corp. v 752 PaciFc, LLC, 62 AD3d 677, 878 NYS2d 421 12d Dept 20091; Gjonlekaj v Sot, 308 AD2d 471,764 NYS2d 278 [2d Dept 20031). On such a motion, the Court’s sole inquiry is whether the facts alleged in the complaint fit within any cognizable legal theory, not whether there is evidentiary support for the complaint (Leon vMartinez, supra; Thomas v Lasalle Bank N. A., 79 AD3d 1015, 913 NYS2d 742 [2d Dept 20101; Scoyni v Clzabouski, 72 AD3d 792,898 NYS2d 482 [2d Dept 20101; Lucia v Goldman, 68 AD3d 1064, 893 NYS2d 90 [2d Dept 20091; International OilFieldSupply Services Corp. v Fadeyi, 35 AD3d 372,825 NYS2d 730 [2d Dept20061). Upon a motion to dismiss, a pleading will be liberally construed and such motion will not be granted unless the moving papers conclusively establish that no cause of action exists (Clzan Ming v Chui Pak Hoi et al, 163 AD2d 268,558 NYS2d 546 [lst Dept 19901).

To establish a cause of action to recover damages for legal malpractice, a plaintiff must prove (1) that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the plaintiff would have been successful in the underlying action had the attorney exercised due care (Tortura v Sullivan Papain Block McGrnth & Cunnavo, P.C., 21 AD3d 1082, 803 NYS2d 571 [2d Dept 20051; Ippolito v McCormack, Damiani, Lowe & Mellon, 265 AD2d 303, 696 NYS2d 203 [2d Dept 19991; Iartnarone v Gramer, 256 AD2d 443,682 NYS2d 84 [2d Dept 19981; Volpe v Canfield, 237 AD2d 282,654 NYS2d 160 [2d Dept 19971, /I) denied 90 NY2d 802, 660 NYS2d 712 [1997]). The defendant contends, in essence, that the complaint fails to allege that the plaintiff “had a sustainable cause of action” against RCI, and would have succeeded in an action against the cruise line had one been commenced.

A review of the complaint reveals that it adequately advises the defendant ofthe issues in this action, that it alleges that the plaintiff would have succeeded in an action against RCI for personal injuries, and that it sets forth a cognizable cause of action for legal malpractice. In any event, the plaintiff has submitted her affidavit which remedies any alleged defects in the complaint. On a motion to dismiss pursuant to CPLR 321 ](a) (7), the court may consider affidavits submitted by the plaintiff to rernedy any defects in the complaint (see Leon v Martinez, 84 NY2d at 88; Rovello v Orofno Realty Co., 40 NY2d 633,635-636, 389 NYS2d 3 14 [ 19761; DaCostn v Trade- Winds Envtl. Restoration, Inc., 61 AD3d 627,628,877 NYS2d 373 [2d Dept 20091). When evidentiary material is adduced in support of the motion, the court must determine whether the proponent of the pleading has a cause of action, not whether the proponent has stated one (see Guggenlieimer v Ginzburg, 43 NY2d 268,275,401 NYS2d 182 [1977]; Thomas v Lasalle Bank N. A. , 79 AD3d at I O 17; Scoyni v Cltabowski, 72 AD3d at 793; Peter F: Gait0 Architecture, LLC vSimone Dev. Corp., 46 AD3d 530, 846 NYS2d 368 [2d Dept 20071). The Court finds that the plaintiff has established that she has a cause of action against the defendant. Accordingly, that branch of thc defendant’s motion which seeks to dismiss the complaint pursuant to CPLR 321 1 (a) (7) is denied.

[* 2]

Caputo v Palermo, Palei-mo & Tuohy, P.C. Index No. Page 3

The second branch of the defendant’s motion seeks summary judgment om the grounds that it has established that the plaintiff could not have succeeded in an action against RCI, and that the defendant was not negligent in its legal representation of the plaintiff. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see AIvarez v Prospect Hosp., 68 NY2d 320, SO8 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 85 1,487 NYS2d 3 16 [ 1985l). The burden then shifts to the party opposing the motion who must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, 289 AD2d 557, 735 NYS;!d 197 [2d Dept 20011; Rehecchi v Wlzitmore, 172 AD2d 600,568 NYS2d 423 [2d Dept 19911; O’Neill v Fishkill, 134 AD2d 487, 52 1 NYS2d 272 [2d Dept 19871). Furthermore, the parties’ competing interests must be viewed “in a light most favorable to the party opposing the motion” (MarineMidlandBank, N.A. v Din0 & Artie’sAutomntic Transmission Co., 168 AD2d 610, 563 NYS2d 449 [2d Dept 19901).

In support of its motion, the defendant submits, among other things, the pleadings, the deposition testimony of the plaintiff and Palermo, affidavits from two employees of RCI, the affidavit of its expert, and a copy of RCI’s file regarding the plaintiff. The plaintiff objects to the admissibility of the affidavits of the RCI employees on the ground that they were notarized in the State of Florida and the Province of Ontario, Canada respectively, and they are not accompanied by certificates verifying that the manner in which they were taken conforms with Florida or Ontario law (see CPLR 306 [d], 2309 [c]; Real Property Law 5 299-a [I]) . I-Iowever, it has been held that the absence of a certificate of conformity is a mere irregularity, not a fatal defect, which can be ignored in the absence of a showing of actual prejudice (see Betz v Daniel Conti, Inc., 69 AD3d 545,892 NYS2d 477 [2d Dept 20101; Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, 68 AD3d 672,891 NYS2d 394 [ 1st Dept 20091; Smith vAllstate Ins. Co., 38 AD3d 522, 832 NYS2d 587 [2d Dept 20071). In addition, a court may permit a party to secure such a certificate later and give it nunc pro tunc effect (see U.S. BankNA. v Dellarmo, 94 AD3d 746,942 NYS2d 122 [2d Dept 20121; Hall v Elrac, Inc., 79 AD3d 427,913 NYS2d 37 [lst Dept 20101: Matnpos Tech. Ltd. v Compnnin Andina De Comercio, Ltda, supra). Here, the defendant has provided the appropriate certificate in one case, and obtained a proper notarization in the other, and submitted admissible affidavits in its reply. In addition, the plaintiff has responded to the issues raised in said affidavits, and she has not indicated that she has suffered any prejudice herein. Accordingly, the Court will consider said affidavil s.

At her deposition, the plaintiff testified that she booked a cruise with RCI for November 2005, that she did not recall if she received a hard copy or an electronic version of her ticket, and that she departed on the cruise ship on November 4,2005. The ship was equipped with a rock climbing wall, and she engaged in rock climbing and was injured on November 10, 2005. She stated that she had participated in rock climbing two or three times before at indoor facilities, that, at those sessions, climbers were provided a harness which was attached to a rope, that a “belayer” attached himself or herself to the floor and held the rope to ensure that there was always tension on the rope so that a climber “dangle[:s], they don’t ever fall in any way.” She indicated that when she previously slipped while climbing, she “just dangle[d].” On the day of this incident, she believes that she signed a waiver before participating in the climb, but she does not recall what it said. ’The plaintiff further testified that she did not know if the waiver was a liability waiver, and that ‘‘Lilt was a letter that you usually have to sign when you do something of risk, ... otherwise you could not participate.”

[* 3]


She did not believe that she was given any instruction or training before starting her climb, that did not believe she was given any handouts, and that she did not believe that she was told of any risks involved in climbing. She indicated that the belayer on the ship, whose name she believes was Chrissy, gave her a harness, which the plaintiff put on, that the belayer “hooked me up,” and that she started to climb. When she was about three feet off the ground, she “lost [her] footing” and fell to the ground, injuring her leg. The plaintiff declared that the belayer did not do her job because she was supposed to keep the rope tight the entire time so that a person would not be in any jeopardy in a fall. She was immediately taken to the ship’s doctor, and she told the doctor how the accident happened. She filled out an accident report in which she wrote “while rock climbing, I fell from approx (sic) 2 !4 feet. landing (sic) hard on my feet causing pain to my right knee and I heard a pop from my Rt (sic) knee. At no time did I feel any tension on the line to ease my fall.”

The plaintiff further testified that she met with Palermo about her accident in December 2005, that she told him that she had signed something to allow her to climb, and that it was her impression that Palermo would proceed with a lawsuit on her behalf. Thereafter, she communicated with Palermo by telephone and fax only. In the Summer of 2007, she received a telephone call from Palermo asking her to come in to discuss her case. At that meeting, Palermo told her that he could no longer represent her, that she needed a maritime attorney, and that there was a two-year statute of limitations to bring her action. She stated that Palermo did not say anything about his communications with RCI at the meeting. She then searched online for maritime attorneys and communicated with several by e-mail. When she informed the maritime attorneys about her case, “most responded right back to me saying there is a one-year [statute of limitations] .” The plaintiff acknowledged that her handwriting appears on a document entitled Royal Carribean International Cruise Tour Ticket Contract (Ticket Contract) which has the handwritten date February 3,2006 at the top. However, she did not recall if she faxed said document to Palermo on that date, although she stated that she did not deny it either.

At his deposition, Palermo testified that he is employed by the defendant, that he is admitted to practice law in New York State only, and that he was formally retained by the plaintiff to represent her in her personal injury claim on December 14, 2005. He had met with the plaintiff on December 10, 2005, before she signed the retainer agreement. At that meeting, the plaintiff told him that she had never rock climbed before, that she climbed up the wall two to two and one-half feet, and that she could not go any higher so she let go of the wall. She volunteered that she had signed a waiver, did not have a copy, and that she understood it to mean that she would not sue RCI. Palermo further testified that he told the plaintiff that he would have to look into the waiver issue, that he discussed the concepts of comparative negligence, assumption of the risk and culpable conduct with her, and that, because the accident happened on a cruise ship, there was a good chance that there would be “some type of clause” that designated the jurisdiction where a lawsuit could be commenced. He stated that he told the plaintiff that “if it’s outside of New York, I wouldn’t be able to do that.”

On February 3, 2006, he received a fax copy of the Ticket Contract from the plaintiff, which he reviewed shortly thereafter. He did not recall if he took particular notice of the clause in the contract which contained the notice of claim and statute of limitations provisions, but did note the forum selection clause. He acknowledged that this was his first case involving an accident on a cruise ship, and that he did not

[* 4]


“know that the ticket would have a contract provision that would limit the time in which you could sue” when he was retained in this matter. Palermo further testified that RCI informed him in a letter dated January IO, 2007 that the plaintiffs right to file a notice of claim and a lawsuit had expired, that this was the first time that he became aware that the Ticket Contract required that a lawsuit be filed within one year according to RCI, and that he did some legal research and made a determination that he believed that the clause was unenforceable. Shortly thereafter, he contacted the plaintiff and asked her to meet with him. At that meeting, he told her that he was unable to reach a settlement with RCI, that it was his position that she had at least two years to file a lawsuit, although RCI was claiming that the ticket contract limits the time to one year, and that he did not think the clause was enforceable. He states that he also informed the plaintiff that he could not file a lawsuit because it could not be filed in New York State pursuant to the forum selection clause in the Ticket Contract, that the clause indicated that the lawsuit had to be filed in Florida, and that she would have to contact another lawyer. He indicated that he had told the plaintiff that he could not file suit in this matter, but that he would try to settle the claim, in a telephone conversation after he received the fax copy of the Ticket Contract in February 2006. He acknowledged that he did not inform the plaintiff that “it was [RCI’s] position in that contract” that she had six months to file a notice of claim and one year to commence a lawsuit in this matter prior to this last meeting.

In his affidavit, David Banciella (Banciella) swears that he is employed by RCI as its Supervisor, Guest Claims, that his duties include maintaining records for on-board activities which require the signing of a liability waiver or creation of an incident report, and that he is in receipt of a subpoena for RCI records dated May 14,20 12. He annexes a copy of an incident report regarding the plaintiffs accident completed by Chrissy Dickson (Dickson), who was an employee of RCI at the time. He states that, in November 2005, all passengers who were going to participate in rock climbing were required to reizd, complete, initial and sign a document entitled “Express Assumption of Risk - Waiver & Release of Liability” (Liability Waiver). Banciella further swears that liability waivers are destroyed after five years, and that RCI conducted a search for the Liability Waiver “that was completed and executed by [the plaintiff], but was unable to be located.” He states that a copy of the Liability Waiver “that was used by RCI on November 10, 2005, and that was presented to [the plaintiffl ... on that date,” is annexed as an exhibit.

In her affidavit, Dickson swears that she was employed by RCI from 2001 to 2006, and that part of her duties included supervising sports and exercise activities on its cruise ships. She explains that a belayer is a person who holds the rope when a “top roping” system is used for rock wall climbing, that the top roping system on the date of the plaintiffs accident used a dynamic rope and also employed an automatic locking belay system which will “pinch the rope, automatically stopping the downward sliding movement” to protect a climber from a fall. She states that she was the belayer for the plaintiffs climb, that RCI had policies and procedures in place regarding rock climbing, and that she “follow[ed] them for each passenger to whom I was assigned.” She indicates that policies required that climbers be advised of the proper clinibing instructions, the risk of personal injury, and that the dynamic rope used was designed to stretch. In addition, each passenger had to read, initial and sign a Liability Waiver. Dickson further swears that her duties included holding the rope securely to ensure that there was adequate tension on thle rope during the climb, that the incident report indicates that the plaintiff let go of the wall and her feet came in contact with the floor, and that because all of RCI’s policies and procedures were followed, she does not believe that she or anyone else caused or contributed to the plaintiffs injuries. She suggests that, based on the plaintiffs close

[* 5]

Caputo v Palernio, I’alermo & Tuohy, P.C. Index No. Page 6

proximity to the ground when she fell, and the “inherent stretch” of the dynamic rope, there was nothing that she could have done to prevent the plaintiff “from coming into contact with the giround after she let go of the wall .”

In his affidavit dated December 14, 2012, Gavin Heverly (Heverly) swears that he is the chief operations officer of Brooklyn Boulders, a rock climbing facility in Brooklyn, New York, that he has 11 years experience in rock climbing instruction, belaying, program management and route-setting, and that he is certified by the American Mountain Guide Association as a climbing wall instructor. He states that he has reviewed the records from RCI regarding this incident, as well as the deposition of the plaintiff, the affidavits of Banciella and Dickson, the pleadings, and photographs of the subject climbing wall. He states that the records reveal that a top rope system with a dynamic rope was used on November 10, 2005, that Dickson was the belayer, that the plaintiff was between two and three feet off the ground when she fell, and that the plaintiff weighed at least 170 lbs. at the time. He states that industry standards require a dynamic rope be used with a top roping system to help reduce the risk of a fall from a “significant height,” and that such a rope is elastic and designed to stretch “during a fall to absorb a substantial amount of the energy, which in turn helps to reduce the risk of injury to the climber.” He opines that, because the plaintiff was only two or three feet off the ground, the dynamic rope would not prevent her from hitting the ground, even if the belayer was properly and securely holding the rope, and that there was nothing Dickson could do to prevent the fall. He indicates that the plaintiffs expectation that she would “dangle” was wrong, in that “the force of gravity was necessarily going to cause plaintiff who weighed at least 1701 Ibs., to fall towards the ground several feet while the dynamic rope absorbed the energy of the fall.” He states that Dickson swears that she held the rope securely and with adequate tension during the plaintiffs climb, and that the plaintiffs statement in the incident report that she did not feel any tension on the line does not indicate otherwise.

Here, the defendant has failed to establish its entitlement to summary judgment on the ground that it was not negligent. There are multiple issues of fact regarding, among other things, the scope of the defendant’s representation of the plaintiff and Palermo’s claim that he informed the plaintiff that he was not able to commence an action against RCI on her behalf. The court’s function on rsummary judgment is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility (see Doize v Holiday Inn Ronkonkoma, 6 AD3d 573,774 NYS2d 792 [2d Dept 20041; Roth v Barreto, supra; Rennie v Barbarosa Transport, Ltd., 15 1 AD2d 379, 543 NYS2d 429 [lst Dept 19891).

ln addition, for a defendant in a legal malpractice case to succeed on a motion for summary judgment, evidence must be presented in admissible form establishing that the plaintiff is unable to prove at least one of the essential elements of a malpractice cause of action (Napolitnno v Markotsis & Lieberman, 50 AD3d 657,855 NYS2d 593 [2d Dept 20081; Olaiya v Golden, 45 AD3d 823,846 NYS2d 604 [2d Dept 20071; Caires v Siben & Siben, 2 AD3d 383, 767 NYS2d 785 [2d Dept 20031; Ippolito v McCormack, Damiani, Lowe & Mellon, supra). It is well settled that the plaintiff is required to prove that, “but for” the attorney’s negligence, the plaintiff would have prevailed on the underlying cause of action (see AmBnse Coup. v Davis Polk & Wardwell, 8 NY3d 428,834 NYS2d 705 [2007]; Snolis v Clare, 81 AD3d 923,917NYS2d299 [2dDept2011]; LedervSpiegel, 31 AD3d266,819NYS2d:!6 [lstDept2006]; Weil, Gotskalt & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267,780 NYS2d 593 [ 1 st Dept 20041; Shopsin v Siben & Siben, 268 AD2d 578,702 NYS2d 610 [2d Dept 2000]).

[* 6]

Caputo v Palernio, Palermo & Tuohy, P.C. Index No. Page 7

In his affirmation, the attorney for the defendant contends that the plaintiff cannot prove that, “but for” his client’s negligence, she would have prevailed in an action against RCI because RCI was not negligent, the plaintiff assumed the risk of the activity, and the liability waiver bars the action. Again, the defendant has not established its entitlement to summary judgment regarding any of these contentions. There are issues of fact regarding Dickson’s actions in belaying the plaintiffs climb, and whether they were negligent. The affidavit of the defendant’s expert, Heverly, does not eliminate all questions of fact in this regard. It is well settled that the opinion testimony of an expert “must be based on facts in the record or personally known to the witness’’ (seeHarnbsclz vNew York City Tr. Autlt., 63 NY2d 723,480NYS2d 195 [1984] citing Cassano v Hagstrom, 5 NY2d 643, 646, 187 NYS2d 1 [1959]; SIti Pei Fang v Heng Sang Realty Corp., 38 AD3d 520, 835 NYS2d 194 [2d Dept 20071; Santoni v Bertelsmann Property, Inc., 21 AD3d 7 12,800 NYS2d 676 [ 1 st Dept 20051). An expert “may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion” (see Shi Pei Fang v Heng Sang Realty Corp. supra). “Speculation, grounded in theory rather than fact, is insufficient to defeat a motion for summary judgment” (see Zuckerman v City of New York supra; Leggis v Gearhart, 294 AD2d 543,743 NYS2d 135 [2d Dept 20021; Levitt v County of Suffolk, 145 AD2d 414,535 NYS2d 6 18 [2nd Dept 19881).

Here, to the extent that Heverly’s affidavit attempts to render an expert opinion that there is nothing that Dickson could have done to prevent this accident, it primarily consists of theloretical allegations with no independent factual basis and it is therefore speculative, unsubstantiated, and conclusory (see Mestric v Martinez Cleaning Co., 306 AD2d 449,761 NYS2d 504 [2d Dept 20031). Here, Heverly accepts as a fact that Dickson “held the rope securely” and with adequate tension during the plaintiffs climb. However, Dickson merely swears that her duties included holding the rope securely and with adequate tension, and states what her custom and practices were. In addition, Heverly does not indicate how much a dynamic, rope would be expected to stretch, or at what height a climber would be entitled to expect the rope to protect him or her from a fall. Accordingly, Heverly’s expert opinion does not eliminate the issues of fact regarding RCI’s purported negligence in this matter.

The Court finds that there are questions of fact regarding the defendant’s contention that the plaintiff assumed the risk of rock climbing. As a general rule, a plaintiff who voluntarily participates in a sporting or recreational event is held to have consented to those commonly-appreciated risks that are inherent in, and arise out of, the nature of the sport generally and flow from participation therein (see Morgan vState oflvew York, 90 NY2d 471,662 NYS2d 42 I [ 19971; Paone v County of Suffolk, 25 1 AD2d 563,674 NYS2d 761 [2d Dept 1998]), including the injury-causing events which are the known, apparent, or reasonably foreseeable risks of the participation (see Rosenbaum v Bayis Ne’Emon Inc., 32 AD3d 534, 820 NYS2d 326 (2d Dept 20061; Colucci v Nansen Park, Inc., 226 AD2d 336,640 NYS2d 578 [2d Dept 19961). A plaintiff is deemed to have given consent limiting the duty of the defendant who is the proprietor of the sporting facility “to exercise care to make the conditions as safe as they appear i o be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, 68 NY2d 432, 510 NYS2d 49 [1986]).

Stated otherwise, the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks (see Manoly v City ofNew York, 29 AD3d 649,8 16

[* 7]


NYS2d 499 [2d Dept 20061; Pascucci v Town of Oyster Bay, 186 AD2d 725, 588 NYS2d 663 [2d Dept 19921). Here, there are issues of fact including, but not limited to, whether RCI’s allegedly negligent actions unreasonably increased the risk of injury to the plaintiff.

Lastly, there are issues of fact regarding the existence of a signed liability waiver, its terms and conditions, and its effectiveness in any action against RCI. In his affidavit, Banciella does not indicate that he made a personal search for the document, or the basis for his statement that RCI could not find the signed copy of the subject waiver. He does not explain how RCI was able to produce its file regarding the plaintiff at least 6 ‘/2 years after her accident, or why any alleged liability waiver would not be in that file or be destroyed separately from, and in advance of, the plaintiffs file. The Court finds that Banciella’s affidavit does not eliminate all material issues of fact regarding the liability waiver purportedly signed by the plaintiff.

Because summary judgment deprives the litigant of his or her day in court, it is considered a“drastic remedy” which should be invoked only when there is no doubt as to the absence of triable issues (Andre v Pomeroy,35NY2d361,364,362NYS2d 131 [1974]; ElzervNassauCounty, 1 1 I AD2d212,489N‘YS2d 246 [2d Dept 19851). Indeed, where there is any doubt as to the existence of triable issues, or where the issue is even arguable, the Court must deny the motion (Chilberg v Chilberg, 13 AD3d 1089,788 N‘YS2d 533 [4th Dept 20041, rearg denied 16 AD3d 1181, 792 NYS2d 368 [4th Dept 201051; Barclay v Dencklu, 182 AD2d 658, 582 NYS2d 252 [2d Dept 19921; Cohen v Herbal Concepts, Inc., 100 AD2d 175,473 NYS2d 426 [lst Dept 19841, afld 63 NY2d 379,482 NYS2d 457 [1984]).

Here, issues of material fact exist as to whether the plaintiff would have prevailed in her action against RCI but for the defendant’s alleged negligence, precluding summary judgment for the defendant (Hershorn v Grae, Rybicki & Partners, P.C., 43 AD3d 459, 841 NYS2d 141 [2d Dept 20071; Boawmun v Siege/, Kelleher & Kalin, 41 AD3d 1247, 837 NYS2d 822 [4th Dept 20071; Van Buren v Worby Borowick Groner, LLP, 9 AD3d 276,779 NYS2d 484 [ 1st Dept 20041). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Ctr., supra; see also Martinez v 123-1 6 Liberty Ave. Realty Corp., 47 AD3d 901, 850 NYS2d 201 [2d Dept 20081; Bozza v O’Neill, 43 AD3d 1094,842 NYS2d 88 [ 2d Dept 20071). Accordingly, that branch of the defendant’s motion which seeks summary judgment is denied.

Accordingly, the defendant’s motion is denied in its entirety.

J.S.C. Dated: July 2, 201 3

FINAL DISPOSITION X NON-FINAL DISPOSITION

[* 8]

Documents

Caputo v Palermo, Palermo, & Tuohy, P.C