Opinion
5535/2009.
Decided November 21, 2011.
This is an action for damages for personal injuries sustained by the plaintiff, Tanya Bailey, on September 16, 2007, when she slipped and fell in a puddle of water while shopping in the Keyfood Supermarket located at 108-16 Liberty Avenue, Ozone Park, Queens County, New York.
This action was commenced by the filing of a summons and complaint on March 9, 2009. Issue was joined by service of the defendant's answer on April 17, 2009. The defendant now moves for an order pursuant to CPLR 3212(b), granting summary judgment on the issue of liability and dismissing the complaint. A defendant who moves for summary judgment in a premises liability case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Bloomfield v Jericho Union Free School Dist , 80 AD3d 637 [2d Dept. 2011]). Here, the defendant contends that it did not create the condition nor did it have actual or constructive knowledge of it, and therefore did not have a legal duty or responsibility to remedy the alleged hazardous condition. In support of the motion, the defendant submits an affidavit from counsel, Brian V. Connor, Esq., a copy of the pleadings, and the transcripts of the examinations before trial of the plaintiff, Tanya Bailey and the defendant, by Keyfood employee, Lucio Carranzo.
The plaintiff, age 34, testified at her deposition taken on August 9, 2010 that on September 16, 2007, in the early afternoon, she was shopping at Key Food. After shopping for approximately 15 minutes she was walking towards the registers, looking straight ahead and walking in an aisle which had bread on one side and produce on the other side when she slipped and fell. She stated that she landed on her right knee and her arm and buttock. While she was on the floor she observed that the floor was wet with water and she also observed a single piece of leafy green vegetable on the floor. She approximated that the size of the water puddle was three to five inches. She stated that prior to falling she had not observed the water or leafy matter that was involved in the accident. She testified that although she remained on the floor for ten minutes no one came to assist her. She stated that when she first fell a man came out of the door to the produce department saw her and started snickering. She then saw him go back in and came out with a group of workers who all started laughing and went back inside. She stated that a cashier came over and asked her if she was alright. The cashier said she was going for the manager but after a few more minutes plaintiff was helped up by some customers. The manager did not come over so plaintiff went over to the manager's area and told the manager that she fell and hurt her knee. She stated that he did not make out a report at that time. Plaintiff's friend then came into the store and took her home. The next day she went to the emergency room at SUNY Downstate where she was treated for pain to her knee and back.
On September 22, 2010, the plaintiff took the deposition of Lucio Carranzo, the present manager of Farm Boy Market, Inc., which does business as Key Food. At the time of the accident Carranzo was a stock boy at the same store. He stated that the aisle where the plaintiff fell had vegetables such as lettuce on one side and bread on the other. Carranzo stated that the date on which the plaintiff fell was a Sunday so he would not have been working that day. He stated that there were surveillance cameras in the aisle. He stated that when he worked as a stock boy that the produce manager would determine when the produce aisle was to be cleaned. He did not know how often the produce aisle was cleaned in 2007. He stated that the produce was watered two or three times a day although he did not know at what times of the day that occurred. When asked if prior to the date of the accident if he had ever seen the floor in Aisle 8 wet from water from water spraying off the produce onto the floor after the produce is cleaned, he stated "no, because they clean it right away." Carranzo also stated that when the produce was sprayed with the hose, sometimes water would go on the floor but there is always someone cleaning. He stated that prior to the date of the accident he was not aware of anyone ever slipping in the produce aisle. He also stated that the store employed a Gleason System for inspecting the aisles. Under that system after a particular aisle was inspected, a certain button was pushed by the inspector to indicate that the aisle was clean. When asked if he had ever seen water on the floor with any leafy vegetables that needed to be picked up, he answered "no."
Defendant also submitted an affidavit from Mr. Carranzo dated April 20, 2011, stating that on the date in question,
"Key Food used the Gleason Inspection System which requires employees to walk around the store with a wand and conduct hourly inspections to make sure there are no slipping hazards, spills or breakages on the floor. In each aisle there is a button that must be physically touched with a hand-held wand and then, after touching the wand, there are buttons to be pressed indicating whether the aisle was clean or had a spill. A computer printout is generated documenting the inspections in an "Inspection Log." The inspection log is kept in the ordinary course of business. A review of the Gleason Log indicates that the produce aisle of the store was inspected at 11:06:16 a.m. and 12:04.40 p.m by employee Shaneeza and found to be clear. If 3 to 5 inches of water was on the floor during the inspection, the Gleason report would not say "clear." The Gleason report only says clear if the aisle is free and clear of any dirt, debris, spillage, breakage or any condition that might cause someone to trip/slip and fall. The fruits and vegetables are sprayed with water using a hose. Whenever the fruits and vegetables are sprayed, the floor is cleaned immediately and the floor is left dry."
Defendant also submits a copy of the Gleason Log for the date in question which indicates that on September 16, 2009, aisle 8 was inspected at 8:04 a.m, 9:05 a.m., 10:08 a.m., 11:04 a.m., 11:52 am and 1:03 p.m. and on all inspections the aisle was reported to be clear.
Defendant also submitted a copy of an unsigned accident report indicating that the plaintiff's accident took place on September 15, 2007 at 12:25 p.m. and that she injured her knee. The date of the accident report appears to state 9/19/05 which was two years prior to the date of the accident. It is not disputed that the accident took place on September 16, 2007 but as the submitted report is unsigned and contains numerous errors this court finds it is without probative value.
In his affidavit in support of the motion for summary judgment, defendant's counsel contends that plaintiff's deposition testimony demonstrates that the plaintiff had no idea what caused her to fall but that she merely concluded that it was water on the floor with a leaf in it because that is what she observed on the floor after she fell. In addition, defendant concludes that there is nothing in the testimony that established actual or constructive notice. Defendant contends that the plaintiff offered no evidence of how long the water was on the floor prior to her fall. In addition, the defendant claims that the Gleason Inspection Log indicates that the aisle was last inspected less than one half hour prior to the accident. Counsel also contends that the plaintiff's suggestion that the defendant created the condition or that the condition existed for an appreciable period of time is mere speculation (citing Mantzoutsos v 150 Street Produce Corp. , 76 AD3d 549 [2d Dept. 2010]; Crawford v AMF Bowling Centers, Inc. , 18 AD3d 798 [2d Dept. 2005]). Further, defendant states that the record does not show that there were any prior falls at that location or that there were any complaints made as to the water on the floor prior to the accident in question.
In opposition to the motion, plaintiff's counsel, Richard M. Guttierrez, Esq., submits an affirmation in which he contends that the defendant has failed to make a prima facie showing of entitlement to judgment as a matter of law. In addition, counsel claims that plaintiff has produced evidence indicating that the defendant had notice and thus a triable issue of fact exists. Counsel also points out that the accident report submitted is incorrect as to the date time and therefore without probative value. In addition plaintiff's counsel states that Mr. Carranzo provided the inspection times for September 15, 2007 rather than the inspection times for September 16, 2007.
In reply, defendant's counsel acknowledges that the accident occurred on September 16, 2007 and points out that the Gleason Log for September 16, 2007 indicates that the last inspection in aisle 8 prior to the plaintiff's accident was at 11:52 a.m.
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 NY2d 557). A defendant owner or entity who is responsible for maintaining a premises who moves for summary judgment in a slip-and-fall or trip-and-fall case involving the property has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Arzola v Boston Props. Ltd. Partnership , 63 AD3d 655 [2d Dept. 2009]; Bruk v Razag, Inc. , 60 AD3d 715 [2d Dept. 2009]).
Upon review and consideration of the defendant's motion, the plaintiff's affirmation in opposition and the defendant's reply thereto, this court finds that the evidence submitted by the defendant was sufficient to demonstrate, prima facie, that the defendant did not create the condition nor did it have actual or constructive notice of the water on the floor prior to the plaintiff's accident.
In order for a plaintiff in a "slip and fall" case to establish a prima facie case of negligence, the plaintiff must demonstrate that the defendant created the condition which caused the accident, or that the defendant had actual or constructive notice of the condition. To constitute constructive notice, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" ( Gordon v American Museum of Natural History, 67 NY2d 836). "To meet [their] initial burden on the issue of lack of constructive notice, [the defendants] must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" ( Birnbaum v New York Racing Association, Inc. , 57 AD3d 598 ; see Pryzywalny v New York City Tr. Auth. , 69 AD3d 598 [2d Dept. 2010]; Arzola v Boston Props. Ltd. Partnership , 63 AD3d 655 [2d Dept. 2009]; Braudy v Best Buy Co., Inc. , 63 AD3d 1092 [2d Dept. 2008]).
Here, there is no evidence that the water and green leaf which allegedly caused Ms. Bailey to slip had been on the floor for any appreciable length of time. Defendant submitted the Gleason Log for the date of September 16, 2007 showing that the floor was last inspected at 11:52 p.m. The plaintiff's Bill of Particulars states that the accident occurred at approximately 12:00 p.m. and the receipt submitted by the defendant shows the plaintiff checked out of the store at about 12:25 p.m. Thus, the record indicates that the accident occurred between 12:00 p.m. and 12:25 p.m. The Gleason Log indicates that the area was inspected less than 30 minutes prior to the accident and shows that the defendant's employee observed that the aisle was clear (see Mantzoutsos v 150 St. Produce Corp. , 76 AD3d 549 [2d Dept. 2010]; Mauge v Barrow St. Ale House , 70 AD3d 1016 [2d Dept. 2010]; Crapanzano v Balkon Realty Co. , 68 AD3d 1042 [2d Dept. 2009]; Yacovelli v Pathmark Stores, Inc. , 67 AD3d 1002 [2d Dept. 2009]; Dennehy-Murphy v Nor-Topia Serv. Ctr., Inc. , 61 AD3d 629 [2d Dept. 2009]; cf. Goodyear v Putnam/Northern Westchester Bd. of Coop. Educ. 86 AD3d 551 [2d Dept. 2011]). Additionally, the deposition testimony of the plaintiff herself established that she saw no accumulation of water prior to her accident (see Mersack v BJ's Wholesale Club, Inc. , 64 AD3d 756 [2d Dept. 2009]). This evidence is sufficient to establish, prima face, that the defendant did not have constructive notice of the water and leaf on the floor.
Further, in his affidavit, Carranzo states that there were no complaints prior to the accident. Although the defendant testified that the produce aisle contained hoses for the purpose of washing the produce, there was no proof in the record as to when the last time the produce was sprayed or that water from spraying the produce was left on the floor.
Thus, as the evidence was sufficient to demonstrate prima facie, that defendant had not caused the water condition on the floor and that defendant had no prior knowledge of the water on which plaintiff fell, the defendant established its entitlement to judgment as a matter of law by demonstrating that it did not create or have actual or constructive notice of the alleged hazardous condition on the floor (see Nisi v Shop-Rite Supermarkets, Inc. , 85 AD3d 749 [2d Dept. 2011]; Slintak v Price Chopper Supermarkets , 81 AD3d 808 [2d Dept. 2011]; Mersack v BJ's Wholesale Club, Inc. , 64 AD3d 756 [2d dept. 2009]; Sloane v Costco Wholesale Corp. , 49 AD3d 522 [2d Dept. 2008]).
Since this evidence satisfied defendants' initial burden of establishing prima facie that they did not create or have notice of the wet floor which caused plaintiff's injury (see Zuckerman v City of New York, 49 NY2d 557, 562), the burden shifted to plaintiff to submit evidentiary proof in admissible form raising a triable issue of fact as to whether defendant created or had notice of the water on which she fell. Plaintiff's contention that water from the hose used to spray the vegetables left a puddle of water on the floor is based upon surmise and conjecture. There is no proof in the record that anyone observed the hose being used that day to spray the produce. Mr. Carranzo stated he did not know the times of the day that the produce was sprayed(see Friedenreich v Roosevelt Field Mall Mgt. , 18 AD3d 808 [2d Dept. 2005]; Maiorano v Price Chopper Operating Co., 221 AD2d 698 [3rd Dept. 1995]). Thus, contrary to the plaintiff's contention, there is no evidence in the record that the produce was sprayed on the day of plaintiff's fall or that the water on the floor was a result of recent spraying (see Leary v Leisure Glen Home Owners Assn., Inc. , 82 AD3d 1169 [2d Dept. 2011]; Sosa v Golub Corp., 273 AD2d 762 [2d Dept. 2000]).
Therefore, this Court finds that in opposition to the defendant's prima facie demonstration of entitlement to judgment as a matter of law the plaintiff failed to raise a triable issue of fact as to whether the defendant either created the alleged dangerous condition or had actual or constructive notice of it in time to remedy or warn of the same (see Hayden v Waldbaum, Inc. , 63 AD3d 679 [2d Dept. 2009]).
Accordingly, for all of the above stated reasons, it is hereby
ORDERED, that the defendant's motion for summary judgment is granted and the plaintiff's complaint is dismissed, and it is further,
ORDERED that the Clerk of the Court is directed to enter summary judgment in favor of KEY FOOD dismissing the plaintiff's complaint.