Opinion
152394/2017
06-23-2020
Jaromir ABRAHAM, Plaintiff, v. DUTCH BROADWAY ASSOCIATES, L.L.C., EZ Mart 4 U Inc., All Is Well Enterprise Inc., Defendants
Law Offices of Elan Wurtzel, P.C., Plainview, NY (Elan Wurtzel of counsel), for plaintiff. DeSena & Sweeney, LLP, Bohemia, NY (Anthony Palmiotto of counsel), for defendant Dutch Broadway Associates, L.L.C.
Law Offices of Elan Wurtzel, P.C., Plainview, NY (Elan Wurtzel of counsel), for plaintiff.
DeSena & Sweeney, LLP, Bohemia, NY (Anthony Palmiotto of counsel), for defendant Dutch Broadway Associates, L.L.C.
Gerald Lebovits, J.
In this personal injury action, defendant, Dutch Broadway Associates, L.L.C. (Dutch Broadway), moves pursuant to CPLR 3212 for summary judgment on the issue of liability, and dismissal of the action by plaintiff, Jaromir Abraham, and all adverse claims against said defendant. Plaintiff opposes.
The parties entered into a stipulation of discontinuance, including all cross claims, against All is Well Enterprise, Inc. (All is Well). EZ Mart 4U, Inc. (EZ Mart) has never appeared in this action.
For the reasons set forth below, the motion is granted.
Background
On Sunday, December 11, 2016, plaintiff sustained personal injuries as a result of a trip and fall accident that occurred at 1551-1579 Dutch Broadway in North Valley Stream in Nassau County. Specifically, at approximately 7:10 p.m., plaintiff was walking on a sidewalk in front of a convenience store at a shopping center on Dutch Broadway owned by defendant, after making a purchase at a liquor store also located in the shopping center (plaintiff dep tr 33-34, 39-40, 44). After his purchase at the liquor store, plaintiff went to see if a former employee there (who had purchased the convenience store in the shopping center a few days before) was working, to see how the former employee was doing (id. at 40-45). It was lightly snowing at that time, with a light amount of accumulation (id. at 46, 49-51). Plaintiff testified that it was dark that evening, but that the shopping center was lit, and he was able to see the sidewalk area in front of him without any difficult (id. , 48-49).
The court rejects plaintiff's contention that plaintiff's unsigned deposition transcripts submitted by defendant are not in admissible form. Defendant counters that the deposition was conducted over a span of two days (plaintiff EBT dated October 22, 2018 and November 20, 2018, defendant exhibits F and G, respectively), and that the second deposition of the plaintiff was treated as a continuation of the first with plaintiff signing the signature page of the second transcript (plaintiff EBT at 256, exhibit G). Moreover, plaintiff does not challenge any specific portions of these transcripts as inaccurate and, in fact, relies on these transcripts. In reply, defendant affirms that though the first transcript is not signed, it was sent to plaintiff's counsel as evidenced by the notice to return deposition and accompanying affidavit of service dated November 14, 2018, which was not returned within 60 days (CPLR 3116 [a] ["If the witness fails to sign and return the deposition within sixty days, it may be used as though signed"]; see also Luna v. CEC Entertainment, Inc. , 159 AD3d 445 [1st Dept 2018] ). The court, therefore, considers plaintiff's deposition testimony in its entirety.
Abraham walked to the convenience store, looked through the storefront window, did not see his friend and turned to go to his car. Abraham walked approximately three steps toward his car, hit "something" with his right foot, and lost his balance (id. at 53-56, 58-59, 61). Specifically, he testified,
"I hit something with my right foot and lost my balance and I-when I tried to regain my balance I make a few steps forward and I hit with my left foot some crack in the sidewalk and I lost my balance completely and I fell down"
(id. at 56). At that time, he was about a foot away from the convenience store (id. at 59). Abraham fell towards his car (id. at 62-63). He fell on his left arm and hit the left side of his head (id. at 64-65). Abraham also testified that the convenience store lights were on inside (id. at 81).
After the accident, plaintiff, after getting help to stand, walked by himself to the liquor store and asked the store employee to call an ambulance (id. at 68-70). Plaintiff then walked back to his car to put the vodka that he purchased in the trunk and walked back to the convenient store to wait for an ambulance (id. at 70). While he waited for the police to arrive, plaintiff noticed that there were two to three carpets outside the convenience store, next to the entrance and under the front window he had been looking through (id. at 74-75). One carpet was laid out on the ground, another was rolled up on the ground and one or two that were standing up (id. at 75-76).
Abraham testified that before his fall, he had been looking at the sidewalk when he was walking toward the convenience store, and did not notice any of the rolled carpets (id. at 79-80). After he fell, he observed the rolled carpeting that was on the ground and noticed that the sidewalk was broken, cracked, and uneven (id. at 82-85). Abraham described the uneven, cracked sidewalk as having a one to two-inch height differential between the two sidewalk flags (id. at 86). Plaintiff believes that his right foot came into contact with the rolled carpet that was on the ground, and he felt his right foot catch onto something that propelled him forward (id. at 119), though he did not see his left foot come into contact with the imperfection on the concrete sidewalk, which was approximately one and a half yards from the convenience store window (id. at 83-84).
After being shown a photograph of the storefront window, Abraham testified that he had looked through the window pane to the right closest to the convenience store entrance (id. at 96-97; see also exhibit H).
Thomas Thomas, owner of All is Well testified that he started a new business and opened the convenience store in early December 2016 after buying the business from EZ Mart (Thomas deposition tr at 9, plaintiff exhibit A). He later testified that he entered into a sublease with a man named Polancho who owned a hair salon in the shopping center, but that the lease was signed at Dutch Broadway's main office on Dutch Broadway (id. at 31-32, 38-39). Thomas testified that he had mats inside his store and identified them as being the ones that were there in December 2016 (id. at 14). Thomas testified that he did not ever roll the carpets because he glued them to the floor(id. at 22-23). Thomas testified that he never placed any mats or carpets outside his store at any time (id. at 24). Thomas testified that on Sundays, the weekday of the accident, his store was closed, and all of the store's exterior signage and interior lights would have been turned off and not illuminated (Thomas EBT at 14-15, 25-28, 41). Though he did testify that the lights above the front store sign were set automatically by the landlord at night and lit the sidewalk (id. at 28, 43-44). After he turned the lights off, the lighting outside of the store would be "medium lit" (id. ). Thomas never complained about the sidewalk area in front of the store (id. at 37). When Thomas owned the store, he had no employees (id. at 38).
Anthony Dalto, co-owner of Dutch Broadway, testified on behalf of defendant, which owns the shopping center where the accident occurred (Dalto deposition tr at 7, plaintiff exhibit C). Dalto is the principal manager of the shopping center, who oversees the day-to-day activities at the property (id. at 11-12, 15). If there were any complaints, he would address them (id. at 11). Dalto testified that he visits the shopping center two to three times a month, during daylight hours, driving through to look at the property from his car (id. at 15-17). On every fifth or sixth visit, he would walk around to get a closer look, see how busy the stores were, look at the façade, make sure everything was "intact" (id. at 17-18). When he did this, he would walk on the sidewalks (id. at 19-20). He testified that he glanced at the sidewalk of the property "almost everytime I go there," when he did the walkthrough and when he would drive by (id. at 21).
Dalto testified that he had no knowledge that any portions of the sidewalk in the strip mall were uneven or broken (id. at 22). He testified that he had driven by the sidewalk one or two weeks prior to December 2016 (id. at 29-30). If Dalto noticed that there was a tripping hazard on the sidewalk or if a hole existed, he would repair it; but that the last time he made any sidewalk repairs was approximately 20-30 years prior to December 2016 (id. at 30-31, 43).
Dalto also testified that the only lighting at the shopping center comes from the stores themselves, and that there is no other lighting (id. at 22-23). Dalto also testified that the light outside the stores is medium bright (id. at 23). Dalto testified that if there was a height differential in excess of half of an inch, he would repair the sidewalk because there would be a tripping hazard, though he admits that he had not inspected the sidewalks in front of the store for five years prior to December 2016 (id. at 30-31, 33, 58-59).
Discussion
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 demonstrate the absence of any material issues of fact’ " ( Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP , 26 NY3d 40, 49 [2015], quoting Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ). "If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action" ( Nomura Asset Capital Corp. , 26 NY3d at 49 [internal quotation marks and citation omitted]; Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ). The court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Vega v. Restani Constr. Corp. , 18 NY3d 499 [2012].)
"[A] defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it" ( Ash v. City of New York, Trump Vil. Section 3, Inc. , 109 AD3d 854, 855 [1st Dept 2013] ). Defendant argues "[i]t is well settled that a defendant is entitled to summary judgment as a matter of law when a plaintiff provides testimony that he or she is unable to identify the defect that caused his or her injury" ( Siegel v. City of New York , 86 AD3d 452, 454 [1st Dept 2011] ; Martino v. Patmar Props., Inc., 123 AD3d 890, 892 [2d Dept 2014] [" ‘the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts’ "] [citation omitted] ). " ‘Additionally, there may be more than one proximate cause’ of a plaintiff's accident and injuries" ( Martino , 123 AD3d at 892 [citation omitted] ).
Although defendant claims that plaintiff was unable to state with certainty what caused plaintiff to fall, he testified with certainty that his left foot hit a crack in the sidewalk when he lost his balance causing him to fall (plaintiff deposition tr at 56; see Taveras v. 1149 Webster Realty Corp. , 134 AD3d 495 [1st Dept 2015], affd 28 NY3d 958 [2016] [the plaintiff's description of how he fell, the nature of the defect and his identification was sufficient to defeat summary judgment] ).
Dutch Broadway argues that even if the court were to find that plaintiff's allegations are sufficient with respect to the rolls of carpeting as a proximate cause or precipitating factor, the carpets were open and obvious and not inherently dangerous. Although a property owner has a duty to maintain his or her property in a reasonably safe condition, "there is ‘no duty to protect or warn against an open and obvious condition, which as a matter of law, is not inherently dangerous’ " ( Fernandez v. Edlund , 31 AD3d 601, 602 [2d Dept 2006], quoting Jang Hee Lee v. Sung Whun Oh , 3 AD3d 473, 474 [2d Dept 2004] ). "Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances. A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted" ( Mullen v. Hellen Keller Servs. for the Blind , 135 AD3d 837, 838 [1st Dept 2016], quoting Katz v. Westchester County Healthcare Corp. , 82 AD3d 712, 713 [2d Dept 2011] ).
Plaintiff concedes that "the rolled carpeting may have been open and obvious and not inherently dangerous" (plaintiff affirmation in opp, ¶ 35). In addition, the court finds that there is no evidence in the record that defendant created the condition of the rolled carpet or had notice, either actual or constructive, of the carpet ( Rabadi v. Atlantic & Pacific Tea Co., 268 AD2d 418 [2d Dept 2000] ).
Plaintiff also argues, though, that it was a defect in the sidewalk that caused plaintiff to fall, which was not open and obvious given that outside the convenience store it was dark (Thomas deposition tr at 19) and snow was lightly falling (plaintiff deposition tr at 49-50). Defendant counters that plaintiff acknowledges that as plaintiff walked from the liquor store at defendant's shopping center to the convenience store, lighting was not an issue, he was able to see in front of him, he walked to the front of the convenience store and stood in front of the window for a few seconds. Importantly, plaintiff testified he was able to see the area in front of the convenience store as the area was "medium lit", as testified to by both plaintiff and Thomas, owner of the convenient store. However, even if the condition is open and obvious, it is relevant to the issue of plaintiff's comparative negligence, and "does not preclude a finding of liability against an owner for failure to maintain property in a safe condition ( Russo v. Home Goods, Inc. , 119 AD3d 924, 925 [2d Dept 2014] ).
"Whether a sidewalk defect is sufficiently hazardous to impose liability is generally a question for a jury to resolve on the particular facts of each case" ( Tineo v. Parkchester S. Condominium , 304 AD2d 383, 383 [1st Dept 2003] ; Trincere v. County of Suffolk , 90 NY2d 976 [1997] ). "There is no minimal dimension test’ or per se rule that a defect must be a certain minimum height or depth in order to be actionable" ( Tineo , 304 AD2d at 384 [citation omitted] ). Moreover, "[w]hether a defect in a sidewalk or step is trivial is generally a matter for a jury, and 'a mechanistic disposition of a case based exclusively on the dimension of the ... defect is unacceptable’ " ( Dominguez v. OCG, IV, LLC , 82 AD3d 434, 434 [1st Dept 2011] [citation omitted]; Mishaan v. Tobias , 32 AD3d 1000, 1001 [2d Dept 2006] [photographs of cracked and broken sidewalk depicting a portion of sidewalk raised at least an inch in height was sufficient to show existence of a question of fact as to whether the defect was trivial] ).
Defendant argues that the evidence supports that Dutch Broadway had no notice of the defective condition of the sidewalk, neither actual nor constructive. Dalto testified he had never received any complaints about the condition of the sidewalk, and there had been no other accidents due to the condition of the sidewalk (see e.g. Wolf v. Fairfield Inn , 77 AD3d 927 [2d Dept 2010] [summary judgment dismissing complaint granted where manager testified no prior complaints or accidents] ). Thomas also testified that for the year that he owned the convenience store, he never complained about the sidewalk.
While defendant may not have had actual notice of the condition, plaintiff argues that Dalto had constructive notice of the defective condition of the sidewalk. "To constitute constructive notice, a defect must be visible and apparent and it must exists for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it" ( O'Hanlon v. Boduva , 251 AD2d 474, 474 [2d Dept 1998] ; Uhlich v. Canada Dry Bottling Co. of NY , 305 AD2d 107, 107 [1st Dept 2003] ). "[D]efendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the accident" ( Bruni v. Macy's Corp. Servs. Inc. , 134 AD3d 870, 871 [2d Dept 2015] ). Defendant testified that he last drove through the shopping center approximately two weeks before December 2016, but last inspected the condition of the sidewalks at least five years prior to December 2016.
Plaintiff contends that based on the photographs depicting a one-inch height differential between concrete slabs, such condition must have existed for a sufficient length of time. However, plaintiff offers no evidence "that an ongoing and recurring dangerous condition existed in the area of the accident which was routinely left unaddressed by the landlord" aside from mere speculation (Uhlich , 205 AD2d at 107 [citation omitted]; Early v. Hilton Hotels Corp. , 73 AD3d 559, 561 [1st Dept 2010] ["absence of evidence demonstrating how long a condition existed prior to a plaintiff's accident constitutes a failure to establish the existence of constructive notice as a matter of law"] ).
In light of the above, the court finds that plaintiff has failed to raise a question of fact as to defect or notice.
Accordingly, it is
ORDERED that Dutch Broadway Associates, L.L.C.'s motion under CPLR 3212 for summary judgment dismissing the complaint is granted, and the complaint is dismissed with costs and disbursements to be taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further
ORDERED that defendant shall serve a copy of this order with notice of its entry on plaintiff and on the office of the General Clerk and the office of the County Clerk, which shall enter judgment accordingly.