Opinion
No. 16838/2012.
06-16-2014
Maggie EVANS, Plaintiff, v. ISRAEL SENIOR CITIZENS HOUSING DEVELOPMENT FUND CORP., Defendant.
Opinion
The following papers numbered 1 to 14 were read on this motion by the defendant, ISRAEL SENIOR CITIZENS HOUSING DEVELOPMENT FUND CORP., for an order pursuant to CPLR 3212(b), granting summary judgment in favor of said defendant and dismissing the plaintiff's complaint:
| Papers Numbered | |
|---|---|
| Notice of Motion–Affidavits–Exhibits | 1–8 |
| Affirmation in Opposition–Affidavits–Exhibits | 9–11 |
| Reply affirmation | 12–14 |
This is an action for damages for personal injuries sustained by the plaintiff, Maggie Evans, on March 1, 2012, when she tripped and fell while walking in the vestibule in route to exit her apartment building located at 155 Beach 19th Street, Queens County, New York. The apartment building is owned by the defendant, Israel Senior Citizens Housing Development Fund Corp. As a result of her fall, the plaintiff allegedly sustained, inter alia, head trauma, lumbar sprain, left hip sprain, left knee sprain and left shoulder sprain.
This action was commenced by the filing of a summons and complaint on August 13, 2012. Issue was joined by service of the defendant's verified answer on September 28, 2012. The plaintiff filed a Note of Issue on September 19, 2013. This matter is presently on the calendar of the Trial Scheduling Part for September 17, 2014.
The defendant now moves for an order pursuant to CPLR 3212(b), granting summary judgment on the issue of liability and dismissing the complaint. The defendant contends that it is not liable because (1) there was no actionable defect/hazardous condition present that caused the plaintiff's accident; (2) the mat and vestibule area where the plaintiff claims she fell was open, obvious, and not inherently dangerous; and (3) plaintiff is unable to identify the cause of her fall (citing Neiderbach v. 7–Eleven, Inc., 56 AD3d 632 [2d Dept.2008] ; Pluhar v. Town of Southampton, 29 AD3d 975 [2d Dept.2006] ; Lezema v. 34–15 Paresons Blvd. LLC, 16 AD3d 560 [2d Dept.2005] ).
In support of the motion, the defendant submits an affirmation from counsel, Douglas J. Domsky, Esq., a copy of the pleadings; plaintiff's verified bill of particulars; and the transcripts of the examinations before trial of the plaintiff, Maggie Evans, and the defendant by building security officer, Sergio Antonio Tejada.
In her verified bill of particulars the plaintiff states that she was caused to trip and fall due to a misplaced rug located at the front entrance to the premises located at 155 Beach 19th Street, Far Rockaway, New York. Plaintiff contends that the defendant was negligent in causing, allowing, and permitting a trap to exist at the location; in failing to maintain the premises in a reasonably safe and proper condition; and in causing, allowing and permitting said premises to remain for a period of time after notice, either actual or constructive, in a dangerous and/or hazardous condition; and in failing to give the plaintiff adequate and timely warning of a dangerous condition. Plaintiff claims that the defendant had actual notice of the dangerous condition because the condition was actually seen by and known to the employees of the defendant who traversed the area.
The plaintiff, Maggie Evans, age 69, testified at her examination before trial, taken on March 20, 2013, that she has lived in an apartment in the subject building for seven or eight years. She had worked at Kennedy Airport as a food preparation worker for 18 years until she had a diskectomy on her lower back in 2001.
Plaintiff testified that she resides in a seventeen story building for senior citizens. The building's front entrance faces Beach 19th Street and the back entrance is on Seagirt Boulevard. She stated that the front entrance has a sliding glass door leading to a three foot long vestibule and a second glass door leading to the outside of the building. She stated that the floor in the vestibule is tiled and is covered a black rug with rubber on the bottom. She stated that the rug covers most of the tile floor between the two doors. She stated that she had an accident in March 2012 in which she tripped and fell in the vestibule area between the two doors. She had taken the elevator down from her apartment and intended to go to the store. She was proceeding to exit the building on the Beach 19th Street side. As she approached the first glass door the door slid open, she entered the vestibule, took two steps, and fell. She stated, “I don't remember where the rug was when I came out on it. All I know is I fell.” When asked what caused her to fall she stated, “what I tripped over, I think, it was the rug across the step way. That's all I can remember” She stated that she never found out what caused her to fall. She testified that she fell forward and her face hit the door in front of her and her left shoulder and left hip hit the ground. She stated that she did not notice anything different about the rug at the time she fell. She stated that in the seven years that she had been residing in that building she never had a problem walking between the two doors prior to the date of her accident and she had never made any prior complaints regarding the mat.
On May 13, 2013, the plaintiff took the deposition of Sergio Antonio Tejada. He is employed by the building owners as a porter/guard. His duties include security at the door, outside cleaning, and supervising other workers. He states that the building is occupied by persons older than 65 and the owners provide services and activities for the residents. He states that there is a security desk in the main lobby. He was stationed at the security desk on the date of the plaintiff's accident but did not see the accident take place. He did see the plaintiff get off the elevator using a cane to walk. He was then notified by another tenant that plaintiff fell. He immediately proceeded to the front entrance and saw the plaintiff laying on her left side in the vestibule area. He stated that he observed the mat covering the tiles did not completely cover the area. There was 3–4 inches that was not covered to the right and left sides of the mat. He identified the subject mat in photographs as the same mat that was in place on the date of the plaintiff's accident. He stated that the mat is not secured in any manner but does not move. He stated that he does not know what caused the plaintiff to fall and she did not tell him. He stated that when he saw the mat in the vestibule it was not mislaid and was completely flat on the floor. He stated that he was not aware of any prior complaints regarding the mat in the front entrance and he was not aware of any prior tripping incidents. He identified an accident report which he prepared which states that the resident fell on the floor while walking out of the building.
In his affirmation in support of the motion for summary judgment, defendant's counsel contends that the plaintiff has failed to identify any dangerous or hazardous condition on the floor which caused her to fall. Defendant claims that it has demonstrated, prima facie, its entitlement to summary judgment because there is no proof in the record that the mat upon which the plaintiff fell or the manner in which it was placed, constituted a dangerous condition. Defendant contends that the plaintiff testified that she walked through the vestibule on a daily basis for seven years without having an accident or ever encountering a problem and that she was not aware of any prior accidents in the area or any prior complaints. Therefore, counsel argues that the there is no testimony of a hazardous condition, and moreover, the photographs identified by the plaintiff at her deposition do no depict a hazardous condition (citing Lezama v. 34–15 Parsons Blvd, LLC, 16 AD3d 560 [2d Dept.2005] ).
Secondly, defendant's counsel argues that the subject floor mat and vestibule were not inherently dangerous and no actionable defects were present (citing Outlaw v. Citibank, N.A., 35 AD3d 564 [2d Dept.2006] [a property owner may not be held liable in damages for trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his [or her] toes or trip over a raised projection]; Sulca v. Barry Hers Realty, Inc., 29 AD3d 779 [2d Dept.2006] ; Gonzalez v. Bd. of Educ., 298 A.D.2d 358[2d Dept.2002] ). Counsel argues that at most, the photographs depict a mat that was laid at a slight angle which is too trivial to be actionable. Further, counsel argues that the purportedly mislaid rug was not inherently dangerous and was a condition well known to the plaintiff (citing Schwartz v. Hersh, 50 AD3d 1011 [2d Dept.2008] ; Bloom v. Lula Realty Corp., 43 AD3d 662 [1st Dept.2007] ; Mokszki v. Pratt, 13 AD3d 709 [3rd Dept.2004] ). Thus, counsel argues it is entitled to summary judgment because the vestibule and floor mat were readily visible, not inherently dangerous, and was a condition that plaintiff was familiar with having traversed the mat on a daily basis (citing Neiderbach v. 7–Eleven, Inc., 56 AD3d 632 [2d Dept.2008] ).
Defendant also contends that there is no proof in the record that the defendant had actual or constructive knowledge of a dangerous condition. Defendant asserts that there was no actionable defect present, and no evidence of any prior complaints about the vestibule or prior accidents that took place in the area.
Lastly, the defendant contends it is entitled to summary judgment as the plaintiff could not identify the cause of her fall. Counsel cites to the plaintiff's deposition testimony in which she stated that she had no idea what caused her to fall. She stated that she tripped over the rug but she could not identify a defect or reason why she tripped on the rug (citing Goldfischer v. Great Atl. & Pac. Tea Co., Inc., 63 AD3d 575 [1st Dept.2009] [he failure to identify the condition that caused plaintiff's fall is fatal to plaintiff's claim]; Pluhar v. Town of Southampton, 29 AD3d 975 [2d Dept.2006] ).In opposition, plaintiff's counsel, Farheen Sultan, Esq. submits an affirmation stating that there are triable issues of fact raised by the evidence. Specifically, she cites the portion of the plaintiff's deposition in which plaintiff states that she tripped over the rug, and the testimony of defendant's witness, Mr. Tejada, who stated that the rug was not secured to the floor. Counsel also asserts that the defendant failed to demonstrate lack of constructive notice. Plaintiff asserts that the photographs show the rug was mislaid, askew and at an angle. Thus, plaintiff argues that the defendant should have been aware that the defendant created the hazardous condition of an unsecured mat that had a tendency to move in a highly traversed front entrance of the building. In addition, counsel argues that there is no proof in the record as to when the lobby area where the plaintiff fell was last inspected (citing Birnbaum v. New York Racing Assn., Inc., 57 AD3d 598 [2d Dept.2008] and that without evidence of when the area was last cleaned or inspected prior to the accident the defendant has failed to make a prima facie showing.
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 N.Y.2d 557[1980] ).
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. Although a property owner has a duty to maintain his or her property in a reasonably safe condition, it has no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous (see Bloomfield v. Jericho Union Free School Dist, 80 AD3d 637 [2d Dept.2011] ; Cupo v. Karfunkel, 1 AD3d 48 [2d Dept.2003] ).
Further, in a trip and fall case, a plaintiff's inability to identify the cause of his or her fall is fatal to his or her cause of action, since, in that instance, the trier of fact would be required to base a finding of proximate cause upon nothing more than speculation” (Melnikov v. 249 Brighton Corp., 72 AD3d 760 [2d Dept.2010] ; also see DiLorenzo v. S.I.J. Realty Co., LLC, 115 AD3d 701 [2d Dept.2014] ; 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 defendant established, prima facie, that it did not create a dangerous condition or have actual or constructive notice of the specific condition which allegedly caused the plaintiff to fall (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836 [1986] ).
Here, plaintiff argues only that she fell on the rug without ascribing any cause for the fall. Although the plaintiff's counsel states that the rug was unsecured and misplaced, the plaintiff did not testify that the rug moved or that the movement of the rug was the cause of the accident. It is clear that the plaintiff was not able to identify the cause of her fall. Although the plaintiff states in her bill of particulars that the rug was misplaced, there was no testimony as to how the rug was misplaced, that the rug was bunched up or raised in any way or how the rug being misplaced was the proximate cause of the accident. The defendant, therefore, demonstrated its prima facie entitlement to judgment as a matter of law by submitting the testimony of the plaintiff in which she stated that she did not know what caused her to trip on the rug (see DeForte v. Greenwood Cemetery, 114 AD3d 718 [2d Dept.2014] ; Dennis v. Lakhani, 102 AD3d 651 [2d Dept.2013] ; Izaguirre v. New York City Tr. Auth., 106 AD3d 878 [2d Dept.2013] ; Racines v.. Lebowitz, 105 AD3d 934 [2d Dept.2013] ).
Even viewing the evidence in the light most favorable to the plaintiff and according her the benefit of all reasonable inferences, the photographs of the rug, which she identified at her deposition, do not show a significant height differential or any hazardous or defective condition which presets an unreasonable risk of harm. The rug in the photographs is flush to the ground and does not have the characteristics of a trap or tripping hazard, is free of defects, and is not inherently dangerous. “While a landowner has a duty to maintain its premises in a reasonably safe manner for its patrons there is no duty to protect or warn against an open and obvious condition which is not inherently dangerous” (see Stern v. River Manor Care Ctr., Inc., 106 AD3d 990 [2d Dept.2013] ). Here, even if the rug was misplaced, mislaid, or was at a slight angle, the condition was readily observable and not inherently dangerous and was well known to the plaintiff who used the front door of the premises and crossed over the rug in question on a daily basis without prior incident (see Iwelu v. New York City Tr. Auth., 90 AD3d 712 [2d Dept.2011] ; Neiderbach v. 7–Eleven, Inc., 56 AD3d 632 [2d Dept.2008] ; Schwartz v. Hersh, 50 AD3d 1011[2d Dept.2008] ). In addition, the defendant's witness testified that he was not aware of any prior incidents or complaints with regard to the rug.
In opposition, the plaintiff failed to submit evidence to raise a question of fact as to the causation of the plaintiff's fall and whether the defendant either created a hazardous condition or had actual or constructive notice of the existence of a hazardous condition.
Accordingly, for all of the aforesaid reasons, it is hereby,
ORDERED, that the defendant's motion for summary judgment is granted and the plaintiff's complaint is dismissed.