Frances Liveo, Plaintiff, v. 2006 2006

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Supreme Court, Kings County, New York.

Frances Liveo, Plaintiff, v. Michael J. Hausman and Caterina Terruso, as Trustees Under the Charles Lomonaco 2006 Qualified Personal Residence Trust I and as Trustees Under the Rosalie Lomonaco 2006 Qualified Personal Residence Trust I, Defendants.


Decided: September 28, 2018

Appearances of Counsel: For Plaintiff: Peter D. DiBona, P.C., 436 Bay Ridge Parkway, Brooklyn, NY 11209 For Defendants: Richard T. Lau & Associates, P.O. Box 9040, 300 Jericho Quadrangle, Suite 260, Jericho, NY 11753

Recitation, as required by CPLR § 2219 (a), of the papers

considered in the review of this Motion

Papers Numbered

Notice of Motion and Affidavits Annexed 1

Order to Show Cause and Affidavits Annexed ______

Answering Affidavits 2

Replying Affidavits 3

Exhibits _______

Other _____

Upon review of the foregoing papers, defendants' motion for summary judgment is decided as follows:

The moving party on a motion for summary judgment bears the initial burden of making a prima facie showing that there are no triable issues of material fact (Giuffrida v Citibank, 100 NY2d 72, 81 [2003]). Once a prima facie showing has been established, the burden shifts to the non-moving party to rebut the movant's showing such that a trial of the action is required (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]).

Plaintiff brought this action against defendants for injuries she sustained when she slipped and fell on property owned by two trusts, for which defendants are the trustees. As defendants explain in their sworn statements, they are trustees of the Charles Lomonaco Qualified 2006 Personal Residence Trust I and the Rosalie Lomonaco Qualified 2006 Personal Residence Trust I (collectively, the "Trusts"). Charles and Rosalie Lomonaco, as grantors, gave their residence, located at 1334 81st Street, Brooklyn, New York, to the Trusts, which grants them the right to remain in the residence for the term of the Trusts.

"A property owner has a duty to keep the property in a 'reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk' " (Craig v Meadowbrook Pointe Homeowner's Assn., Inc., 158 AD3d 601, 602 [2d Dept 2018] quoting Basso v Miller, 40 NY2d 233, 241 [1976]). Here, the Trusts are the property owners. A trust, however, is a legal fiction, and cannot sue or be sued itself (Natixis Real Estate Capital Tr. 2007-HE2 v Natixis Real Estate Holdings, LLC, 149 AD3d 127, 132 [1st Dept 2017]). Instead, trustees, as representatives of the trust, act on behalf of the trust to bring legal action, and can also be sued in situations where the trust may be liable (Raymond Loubier Irrevocable Tr. v Loubier, 858 F3d 719, 722 and 730 [2d Cir 2017]; Natixis, 149 AD3d at 132; Ronald Henry Land Tr. v Sasmor, 44 Misc 3d 51, 52 [App Term, 2d, 11th & 13th Jud Dists 2014]). Accordingly, defendants, as trustees of the Trusts, and not in their individual capacity, have a duty to keep the property in a reasonably safe condition.

Defendants seek to avoid this responsibility by claiming they are out-of-possession landlords, but they do not suggest who should assume this responsibility. It would appear from defendants' motion that, if they are successful, no one is responsible for keeping the property reasonably safe. Furthermore, delegating such responsibility is contrary to the basic duty of a trustee, which is to preserve and maintain the trust assets (Central States, Southeast and Southwest Areas Pension Fund v Cent. Transp., Inc., 472 US 559, 572 [1985]).

Moreover, defendants did not meet their burden to establish that they contractually delegated this duty to another (Washington-Fraser v Indus. Home for the Blind, 164 AD3d 543 [2d Dept 2018]). The copies of the trust agreements for each of the Trusts that defendants submitted were not properly before this court because defendants provided them only with their reply papers (N. Blvd Corona, LLC v N. Blvd Prop., LLC, 157 AD3d 895, 896 [2d Dept 2018], lv to appeal dismissed in part, denied in part, 31 NY3d 1133 [2018]). However, even if this court were to consider the trust agreements, Section 14.01(B) of the trust agreements shows that defendants shared the authority, and therefore the obligation, to make repairs to the property.

Defendants also argue that, even assuming they had such a duty, they had no notice of any hazardous condition on the premises. However, defendants do not show they did not have constructive notice of it, because they do not submit sufficient evidence of the amount of water on the floor (Gordon v American Museum of Natural History, 67 NY2d 836, 837—838 [1986]). Defendants also do not provide evidence about when the accident site was last cleaned or inspected prior to the accident (Mavis v Rexcorp Realty, LLC, 143 AD3d 678, 679 [2d Dept 2016]). Accordingly, defendants do not have sufficient evidence to warrant dismissal of plaintiff's claim.

Finally, defendants did not submit sufficient evidence to dismiss plaintiff's negligence claims that defendants failed to provide adequate light in the garage. The deposition testimony of Charles Lomanco merely states that the garage had fluorescent lights. Plaintiff does not claim that there were no lights in the garage, but that the lighting condition was insufficient on the garage floor. Accordingly, triable issues of fact also prevent dismissal, on summary judgment, of plaintiff's claim for negligence on the basis of a failure to illuminate the garage floor.

For the foregoing reasons, defendants' motion for summary judgment is denied.

This constitutes the decision and order of the court.

Dated: September 28, 2018

Devin P. Cohen

Acting Justice, Supreme Court

Devin P. Cohen, J.