Jimenez, v. St. Patrick's Church; Newburgh, 2439/2011
Cite as: Jimenez, v. St. Patrick's Church; Newburgh, 2439/2011, NYLJ 1202582170717, at *1 (Sup., OR, Decided July 9, 2012)
Justice Elaine Slobod
Decided: July 9, 2012
Attorneys for Plaintiff: The Kitson Law Firm, White Plains, NY.
Attorneys for Defendant: Rivkin Radler, LLP, Uniondale, NY.
OPINION and ORDER
Upon the foregoing papers it is ORDERED that this motion is denied.
Plaintiff was cleaning an outdoor crucifix on a base on defendant's property with the permission of one of the parish priests. The crucifix was made of marble. When plaintiff climbed on the base under the crucifix to clean the corpus on the crucifix, the cross structure came loose from the base as plaintiff leaned on it for balance and fell on plaintiff. The cross structure apparently weighed over five hundred pounds. Plaintiff lost his leg.
According to plaintiff's experts, the screw which was used to secure the cross structure to the base was too short for its purpose and was not sufficiently anchored by mortar.
The crucifix's age is apparently not known. It had been on defendant's property for over twenty years. Apparently, church records do not contain any information as to its origin or installation.
Defendant now moves for summary judgment dismissing the complaint which seeks monetary damages for plaintiff's injuries on a negligence theory.
The court agrees with defendant insofar as it argues that the defect was a latent one and that it had no actual or constructive notice of it (see Spindell v. Town of Hempstead, 92 AD3d 669 ).
The court also agrees that since it does not appear that the crucifix was listing or leaning in any way that the defect was not discoverable through a reasonable visual inspection (Id.). The law does not impose a duty on a church to climb on every monument or statue to determine whether it would fall. The court also agrees with defendant that this is not a case where plaintiff may rely upon res ipsa loquitur. Plaintiff was climbing on the monument when it fell (see Corcoran v. Banner Super Market, Inc., 19 NY2d 425 ; Crawford v. City of New York, 53 AD2d 462 ).
Here however, and unlike Spindell, defendant has not made a showing of a prima facie entitlement to summary judgment on the issue of whether defendant created the defective condition. In Spindell,
the Town of Hempstead "demonstrated, prima facie, that it did not create the dangerous condition, consisting of the instability of the monument, through evidence that it did not have any role in constructing or installing the monument" (Spindell, supra at 671). Contrary to defendant's contention, the complaint does allege that defendant created the condition (paragraph 7). Defendant argues that "St. Patrick's is not a monument company. St. Patrick's is not an engineering company. St. Patrick's is not a construction company" (Reply Affirmation of Frank Raia, Esq. dated June 25, 2012). It does not necessarily follow, however, that church employees in years more than twenty past did not secure the cross structure to the base when the two were obtained. On this motion, it is defendant's burden to establish an entitlement to summary judgment. In this respect, the court cannot infer from the present record that some third-party monument company erected the structure although that could be the case.
Accordingly, the motion is denied.
This matter is scheduled for pre-trial conference on August 1, 2012 at 1:30 p.m. at the Orange County Courthouse, Courtroom #7, 285 Main Street, Goshen, New York.
The foregoing constitutes the decision and order of the court.