Bresler v. Museum Tower Corporation

Full title: AKIKO BRESLER, Plaintiff, v. MUSEUM TOWER CORPORATION, MUSEUM OF MODERN…

Court: Supreme Court of the State of New York, New York County

Date published: Jan 13, 2010

2010 N.Y. Slip Op. 30118 (N.Y. Sup. Ct. 2010)

Opinion

108143/07.

January 13, 2010.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] JOAN A. MADDEN, J.

In this personal injury action, defendant ABM Industries, Inc. ("ABM") moves for summary judgment dismissing the complaint and all third party and cross claims against it (motion seq. no. 003). Defendant The Museum of Modern Art ("MOMA") also moves for summary judgment dismissing the complaint against it or, in the alternative, for summary judgment with respect to its cross claim against ABM for contractual indemnification. (motion seq. no. 004).¹ Plaintiff Akiko Bresler ("Bresler") opposes the motions for summary judgment and cross moves for summary judgment as to liability. For the reasons stated below, the defendants' motions for summary judgment are granted and Bresler's cross motion for summary judgment is denied.

1 Motion seq. nos. 003 and 004 are consolidated for disposition.

Background

Bresler alleges that she sustained personal injuries on November 12, 2005, at approximately 3:00 p.m. at MOMA located on 11 West 53^rd Street, New York, New York ("the premises"), when she slipped and fell on the floor in the third floor corridor. Bresler contends that she fell due to the dangerous condition of the corridor and, in particular, that the defendants and/or their agents caused or permitted the corridor to become and remain in a dangerous and slippery condition and that this condition caused her to fall. At the time of the incident, ABM was under a contract with MOMA, which commenced on November 1, 2004, to perform cleaning and janitorial services on the premises, including the third floor corridor.

Bresler testified at her deposition that she fell when she was about halfway down the third floor corridor and that, following her fall, she observed that the floor was wooden and appeared polished (Bresler dep. at 31). She also stated that the floor was slippery (Bresler dep. at 94). However, Bresler also testified that she did not observe any polish, liquid, debris, other substance, or smudges, on the floor (Id. at 31). Bresler's husband, Laurence Bresler, was present on the date of the accident and submits an affidavit in which he states that, prior to Bresler's fall, he thought that his wife might slip on the floor because it appeared glossy and shiny (Laurence Bresler affidavit, 1-2). However, he did not state that he saw any polish, liquid, debris, other substance, or smudges, on the floor before or after plaintiff's fall. William Maguire ("Maguire"), the security guard on duty in the vicinity of the third floor corridor, who came to assist Bresler following her fall, testified at his deposition that he did not observe anything unusual about the floor when he came to assist Bresler. (Maguire dep. at 32)

With respect to the maintenance of the third floor corridor, Roger Samuel, a project manager for ABM, testified that ABM dust mopped the floors every night and waxed or buffed the floors periodically. (Samuel dep. 22-23). He also testified that ABM waxed the floors approximately once or twice per month, but the record does not indicate when the floors were last waxed prior to Bresler's fall. (Samuel dep. 22).

ABM moves for summary judgment on the grounds that (1) ABM owed no duty to Bresler, and (2) even if ABM owed a duty to Bresler, Bresler has not alleged facts sufficient to show that ABM improperly cleaned or maintained the floors or that the accident occurred as a result of ABM's negligence.

MOMA separately moves for summary judgment on the grounds that plaintiff has not alleged facts sufficient to show that a dangerous condition existed on the third floor corridor or that MOMA had notice of it.²

2 By order dated January 3, 2008, Justice Roland Acosta granted Bresler's motion for a default judgment against defendant Museum Tower Corporation, directed Bresler to file a note of issue and that an inquest be held at the time of trial. Bresler filed a note of issue on April 30, 2008.

Bresler opposes the defendants' motions for summary judgment, arguing that summary judgment should be denied because (1) ABM and MOMA "utterly failed to keep. . . . the third floor corridor floor, in a safe and hazard free condition" (Affirmation in Opposition to Motion and In Support of Cross Motion, at ¶ 9), (2) the defendants have "failed to sustain their initial burden of lack of notice" (Id.), and (3) "there is an issue of fact as to whether the defendants negligently waxed the museum floors so as to become dangerous and a slipping hazard" (Id.). Bresler also cross moves for summary judgment on the issue of the defendants' liability asserting that "the defendants caused and created a defective floor by applying too much wax, thus making the floor excessively slippery and hazardous" (Affirmation in Opposition to Motion and In Support of Cross Motion, at ¶ 28).

Discussion

On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case . . ." Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 852 (1985). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986).

With respect to ABM's motion, it does not appear that, based on the facts provided, that ABM owed a duty to Bresler based on its contract with MOMA. Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136, 138 (2002) (holding that "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party"). However, even if Bresler owed ABM a duty, ABM has made a prima facie case that it is entitled to judgment as a matter of law. For a plaintiff to demonstrate a prima facie case of negligence in a slip and fall case, a plaintiff must show that the defendant had actual or constructive notice of the allegedly dangerous condition or that it caused the condition to be created by its own affirmative act. Mercer v. City of New York, 223 AD2d 688, 689 (2^nd Dept),aff'd, 88 NY2d 955 (1996).

While Bresler asserts that ABM caused the floor to be slippery, the record is devoid of any evidence supporting a finding that the floor was negligently maintained. Moreover, it is well settled that "the fact that a floor is slippery by reason of its smoothness or polish, in the absence of proof of a negligent application of wax or polish, does not give rise to a cause of action or inference of negligence." Thomas v. Caldor's, 224 AD2d 171 (1^st Dept 1996). In addition, Bresler's observation that the floor looked slippery because it appeared polished, shiny, and/or glossy is not alone enough to support a finding of negligence.See Caran v. Hilton Hotels Corp., 299 AD2d 252 (1^st Dept 2002), lv dismissed, 3 NY3d 693 (2004) (trial court properly granted summary judgment when plaintiff's assertion of excessive or improper waxing was "based on nothing more than the observation that the floor was shiny"); Davies v. City of New York, 39 AD3d 390 (1^st Dept), lv denied, 9 NY3d 808 (2007)(same). Therefore, since Bresler has not made a prima facie showing of negligence against ABM, ABM's motion for summary judgment must be granted.

MOMA's motion for summary judgment should be granted on the same grounds, namely that Bresler has failed to provide evidence that a dangerous or defective condition existed in the third floor corridor or that the floor was negligently maintained at the time of the accident. In view of the foregoing, Bresler's cross motion for summary judgment on the issue of liability is denied.

Finally, since defendants are entitled to summary judgment dismissing the claim against them, the court need not reach MOMA's alterative request for summary judgment on its cross claim for contractual indemnification against ABM.

Conclusion

In view of the above, it is

ORDERED that the motion for summary judgment by defendant ABM Industries, Inc. (motion seq. no. 003) is granted and the claims against in the complaint and third-party complaint are dismissed; and it is further

ORDERED that the motion for summary judgment by defendant The Museum of Modern Art (motion seq. no. 004) is granted and the claims against it in the complaint are dismissed; and it is further

ORDERED that the Clerk shall dismiss and sever the claims against ABM Industries, Inc. and The Museum of Modem Art and the third-party complaint; and it is further

ORDERED that with respect to its claims against the defaulting defendant Museum Tower Corporation, Bresler's counsel shall appear for a pretrial conference in Part 11, room 351, 60 Centre Street on February 4, 2010 at 2:30 pm.³

3 In the event Bresler decides not to pursue the claims against Museum Tower Corporation, counsel for Bresler shall contact Part 11 at 646-386-3314.