Opinion
INDEX NO. 154658/2014
09-19-2019
ARNOLD C. HINTON, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF JULIETTE GOOLSBY-HINTON, Plaintiff, v. WESTBETH CORP. HFDC INC. and PHIPPS HOUSES SERVICES INC., Defendants.
NYSCEF DOC. NO. 120 PRESENT: HON. KATHRYN E. FREED Justice MOTION SEQ. NO. 002
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 002) 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 79, 80, 81, 82, 83, 84, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118 were read on this motion to/for SUMMARY JUDGMENT.
In this personal injury action by plaintiff Arnold Hinton individually and as the Administrator of the Estate of Juliette Goolsby-Hinton, defendants Westbeth Corp. HDFC Inc. and Phipps Houses Services Inc. move, pursuant to CPLR 3212, for summary judgment dismissing the complaint. Arnold Hinton opposes the motion and cross-moves, pursuant to CPLR 3126, for spoliation sanctions. After oral argument, and after a review of the motion papers and the relevant statutes and case law, the motions are decided as follows.
Although Arnold Hinton purports to cross-move pursuant to CPLR 3216, this is clearly a typographical error.
FACTUAL AND PROCEDURAL BACKGROUND:
Juliette Goolsby-Hinton ("Juliette") commenced this action by filing a summons and complaint against defendants Westbeth Corp. HDFC Inc. ("Westbeth") and Phipps Houses Services Inc. ("Phipps") (collectively "the defendants") on May 13, 2014 ("the 2014 action"). Doc. 1. In the complaint, Juliette alleged that, on September 5, 2012, she was injured when she tripped and fell on a mat in the lobby of her apartment building at 55 Bethune Street, New York, New York ("the building"). Id. She claimed that the accident occurred due to the negligence of the defendants in, among other things, using a mat which was in an unsafe condition and in failing to tape the mat down. Id.
The accident date alleged in the complaint appears to be incorrect. As noted below, the bill of particulars (Doc. 18) alleges that the accident occurred on September 6, 2012 which, based on other evidence submitted in connection with the instant motions, appears to be the correct incident date.
Defendants joined issue in the 2014 action by their answer filed June 30, 2014. Doc. 3.
In her bill of particulars, Juliette alleged, inter alia, that, on September 6, 2012, she tripped and fell over a mat which was placed in front of an elevator in the lobby of the building. Doc. 18. Juliette claimed that the mat was defective because it had curled up edges. Id. Although Juliette did not specifically allege that the mat was not taped down, she maintained that it "did not lie smooth on [the] surface of [the] floor" and that defendants "fail[ed] to make transition surface from edge of matting to floor level so that edge would not protrude creating tripping hazard . . ." Id. She further alleged that the defendants created and had actual and/or constructive notice of the condition. Id.
In April 2015, Juliette passed away (Doc. 12) from causes unrelated to the alleged accident. Doc. 52 at par. 9. In May 2015, Juliette's husband, Arnold Hinton ("Arnold"), commenced a separate action ("the 2015 action") against the defendants in this Court, under Index Number 154904/15, in which he asserted a derivative claim. Doc. 21. The defendants joined issue in the 2015 action by their answer filed on or about November 17, 2015. Doc. 22. By order entered October 14, 2016, this Court named Arnold as the Administrator of Juliette's Estate and consolidated the 2014 and 2015 actions. Doc. 29.
At his deposition in October 2017, Arnold testified, inter alia, that Juliette was injured on September 6, 2012 when she tripped and fell on a "buckled" mat located outside an elevator in the lobby of the building. Doc. 65 at 35, 40-42. When asked what "buckled" meant, Arnold replied "[c]urved at the end." Id. at 42. He noticed that the mat was curved as his wife was falling but could not estimate, in inches, how far the mat was curled. Id. at 40-42. He did not know whether the mat was "affixed" to the floor or whether it was curled prior to the incident. Id. at 34, 42 Arnold did not know of anyone who "had any issue" with the mats in the lobby prior to the incident. Id. at 35. Nor did he make any complaints about the mats or know of anyone who did. Id. Arnold further testified that, "[m]aybe a few minutes" after Juliette fell, the security guard in the lobby came over to where she fell and said "I knew someone should have taped down the mat." Doc. 65 at 44.
In December 2017, Shelly Staine was deposed on behalf of the defendants. Staine testified that she was employed as an assistant property manager by Westbeth, which was an entity which provided low income housing for artists. Doc. 66 at 10. Westbeth hired Phipps to be the building's property manager. Id. at 11. One of her duties was to receive tenant complaints. Id. at 23. As of the date of the accident, she was not aware of any tenant complaints regarding mats in the lobby of the building. Id. at 27.
The building's policy was that the mats in the lobby "must always be taped down" and the porter regularly inspected the mats. Id. at 43-44. According to Staine, the porter cleaned the lobby each day between 8 and 10 a.m. and checked the mats in the lobby every day to make sure they were taped down properly. Id. at 52-54. She was not aware of any written records kept regarding the inspections. Id. at 54-55. She did recall, however, that on September 6, 2012, she walked in the area where the incident occurred several times and saw that the entire perimeter of the mat in front of the elevator was taped down. Id. at 46.
At approximately 11:30 a.m. - 12:00 p.m. on the date of the accident, Staine was in the office of the building when she was notified about the incident by security over the intercom. Id. at 63, 67-68. She immediately left the office and ran to the lobby, where she saw Juliette on the floor in front of the elevator. Id. at 68-69.
Bayan Abdel Barre testified at his February 2018 deposition that he was employed by the defendants as a security guard. Doc. 67 at 9. As part of his training, he was taught to identify any dangerous conditions. Id. at 20. If a tenant made a maintenance request or complaint to him, he would write a report. Id. at 26. However, he did not remember receiving any complaints about the condition of the lobby, including the condition of the mats, prior to the date of the incident. Id. at 26, 35. Although Barre was in the lobby at the time of the incident, he did not see Juliette fall and he did not observe the condition of the mat before she fell. Id. at 36, 50, 63. He testified that the building porter, Albert Thurton, cleaned the lobby each day between 8 and 10 a.m. Id. at 40-41. He denied saying, after Juliette fell, that someone should have taped down the mat. Id. at 63. He also denied calling anyone to come and tape the mat down after she fell. Id. at 63.
In May 2018, Thurton was deposed on behalf of his employer, Westbeth, for which he worked as a porter. Doc. 68 at 7, 13-15. Although Thurton was "maintaining the lobby" at the time of the incident, he did not see Juliette fall and saw her on the ground after hearing a commotion. Id. at 9, 12-14. He did not know whether any documents were created as a result of the incident. Id. at 9. Thurton was not aware of any tenant complaining about the mat prior to the incident. Id. at 24.
Cinthia Carton, an assistant manager for Westbeth, was also deposed in May 2018. Doc. 69. She described the mat in front of the elevator as a rubber-edged weather mat and recalled that the mat was secured to the floor with duct tape prior to the incident. Id. at 34, 50. She was not aware of any complaints about the mat or of anyone tripping on the mat during the same time period. Id. at 51.
Carton "believed" that there was an accident report written by Barre, who "witnessed the accident", because that was "part of his duty", but that she did not review the same because it was stored in the basement of the building and was destroyed by flooding caused by Hurricane Sandy. Id. at 8-9, 13-16.
Arnold filed a note of issue on October 1, 2018. Doc. 49.
The defendants now move, pursuant to CPLR 3212, to dismiss the complaint. Arnold opposes the motion and cross-moves, pursuant to CPLR 3126, to strike the answer based on the defendants' alleged spoliation of evidence. The defendants oppose the cross motion.
In support of their motion, the defendants argue that they did not create or have notice of the allegedly dangerous condition. They also contend that any dangerous condition related to the mat was open and obvious and not inherently dangerous.
The defendants also submit in support of their motion the affidavit of Paul Morris, their expert engineer. Doc. 70. Morris opines, within a reasonable degree of engineering certainty, "that there is no evidence that there was any negligence in the placement or utilization of the mat . . . or that there was any defect in either the mat, how it was laid out or how it was taped down at the time [of the accident]." Doc. 70 at par. 20.
In an affidavit in support of the motion, Thurton avers, inter alia, that the mat was always taped to the floor of the lobby except when it was removed, approximately once per month, for the buffing of the lobby floor. Doc. 71. He further asserts that he knew that the mat was not in a dangerous condition because he inspected it before 10 a.m. on the day of the incident. Id.
Carton also submits an affidavit in support of the motion. She represents that, following the accident, she looked at the mat, which was taped to the floor, and it was not bunched up and did not have upturned edges. Doc. 72.
In an affidavit in support of the motion, Matthew Russas, property manager at the building, states that one of his duties was to oversee the video surveillance system and cameras in the building and he authenticated the videotape of the incident exchanged with Arnold. Doc. 73.
In opposition to the motion, Arnold argues that the defendants have failed to establish their prima facie entitlement to summary judgment. He asserts inter alia, that Barre's statement that he "knew someone should have taped down the mat" falls within the excited utterance exception to the hearsay rule and creates an issue of fact regarding whether the mat was in a dangerous condition. Arnold also submits the sworn statements of Ellen Rosen, Dylan Rosen, Jacqueline Taylor Basker, and Mark Rubin, all of whom represent that they never saw the mat taped down prior to the incident. Docs. 91-94. Additionally, each of these individuals except Rubin claims to have tripped on the mat prior to the incident. Docs. 91-93.
Additionally, Arnold submits the affidavit of Vincent Ettari, his expert engineer, who opines, inter alia, that Juliette's accident was caused by the buckled condition of the mat. Doc. 95. Arnold maintains that the conflicting opinions of the parties' experts create issues of fact warranting a trial.
In support of the cross motion, Arnold argues that spoliation sanctions, in the form of striking the defendants' answer, should be imposed because the latter failed to produce the accident report and documents relating to Barre and Thurton's job descriptions. Doc. 90.
In reply, the defendants argue that Arnold failed to raise a triable issue of fact regarding whether defendants created or had actual or constructive notice of any dangerous condition. Doc. 112. They further assert that, even if Ellen Rosen, Dylan Rosen, Jacqueline Taylor Basker, and Mark Rubin saw that the mat was not taped down prior to the incident, and even if they tripped on the mat prior to the incident, there is no proof that they reported the condition to the defendants and thus the latter had no notice of the condition. Defendants further assert that spoliation sanctions are not warranted in this matter since Russas represents that they never maintained the job descriptions demanded by plaintiff.
LEGAL CONCLUSIONS:
Defendants' Motion for Summary Judgment
"[T]he 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. Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers." Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986) (internal citations omitted). Once prima facie entitlement has been established, in order to defeat the motion, the opposing party must "'assemble, lay bare, and reveal his [or her] proofs in order to show his [or her] defenses are real and capable of being established on trial . . . and it is insufficient to merely set forth averments of factual or legal conclusions.'" Genger v Genger, 123 AD3d 445, 447 (1st Dept 2014), quoting Schiraldi v U.S. Min. Prods., 194 AD2d 482, 483 (1st Dept 1993). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. Rotuba Extruders v Ceppos, 46 NY2d 223, 231 (1978).
The defendants established their prima facie entitlement to summary judgment by submitting the deposition testimony of Arnold, Stain, Barre, Thurton and Carton, as well as the affidavits of Carton and Thurton. These witnesses established that the mat was always taped down prior to the alleged accident and that they did not notice that the mat was curled or bunched up prior to the accident. Thus, they have established that they neither created, nor had actual notice of, the alleged buckling or curling of the mat.
Additionally, the defendants have established that that they did not have constructive notice of the alleged defect. "To demonstrate lack of constructive notice, a defendant must produc[e] evidence of its maintenance activities on the day of the accident, and specifically that the dangerous condition did not exist when the area was last inspected or cleaned.' Ross v Betty G. Reader Revocable Trust, 86 AD3d 419, 421 (1st Dept 2011); see also Savio v St. Raymond emetery, 160 AD3d 602, 603 (1st Dept 2018)." Barrett v Aero Snow Removal Corp., 167 AD3d 19, 520 (1st Dept 2018). Here, Thurton states in his affidavit that he cleaned and inspected the lobby every day between 8 and 10 a.m. and that, after a short break at 10 a.m., he "always return[ed] to the lobby to check the conditions of the lobby one more time." Doc. 71 at par. 4. Since Thurton did not recall "ever seeing the tape on a mat become loose", the defendants have established the absence of constructive notice.
Additionally, defendants submit the affidavit of their expert, Morris, who avers that the placement of the mat was proper and that it was properly taped down prior to the incident.
Given the foregoing, this Court finds that defendants have established their prima facie entitlement to summary judgment dismissing the complaint. See Caban v Bronx Park S. II Assoc., 142 AD3d 462 (1st Dept 2016).
In opposition to the motion, Arnold cites his testimony that, just after the incident, he heard the security guard in the lobby (Barre) say that he "knew someone should have taped down the mat." He claims that this statement is admissible under, inter alia, the party admission and excited utterance exceptions to the hearsay rule. Since Arnold fails to establish that Barre had the authority to speak on behalf of defendants, he has not demonstrated that the statement constituted a party admission. See Hyde v Transcontinent Record Sales, Inc., 111 AD3d 1339 (4th Dept 2013). However, since Barre made this statement right after the incident, and while still under the stress of the excitement of the occurrence, it is admissible under the excited utterance exception to the hearsay rule. See People v Cantave, 21 NY3d 374, 381 (2013); People v Gantt, 48 AD3d 59, 64 (1st Dept 2007). Thus, Barre's statement raises an issue of fact regarding whether the mat was taped down at the time of the incident.
Although Arnold annexes to his motion papers a videotape of the alleged accident (Doc. 100), the resolution of the footage is quite poor and it thus fails to provide this Court with any additional insight regarding the cause of the occurrence.
Additionally, as noted above, Ellen Rosen, Dylan Rosen, Jacqueline Taylor Basker, and Mark Rubin represent in sworn statements that the mat was not taped down prior to the incident, and all but Rubin claimed that they tripped over the mat before the incident. The defendants claim that, even if these statements are true, there is no proof that these individuals reported the condition of the mat to the defendants and thus the latter had no notice of the condition. This Court disagrees, however. Although there may be no proof of actual notice to the defendants, these individuals have raised an issue of fact regarding whether the defendants had constructive notice of the condition of the mat, i.e., whether they knew or should have known that the mat was in a defective or dangerous condition.
In support of their motion, the defendants rely, inter alia, on Perez v Gasho of Japan, Inc., 136 AD3d 427 (1st Dept 2016). In that case, the infant plaintiff tripped on what her mother described as a small bump on a rug and the case was dismissed on the ground that the incident was caused by a trivial defect. That case is distinguishable, however, since Arnold was unable to describe the size of the alleged defect herein. Doc. 101 at 42.
Arnold's Cross Motion for Spoliation Sanctions
"CPLR 3126 provides a court with a broad range of options in addressing a party's discovery abuses. In making its determination of the appropriate sanction, the court must consider the degree to which the contumacious conduct or destruction of evidence prejudiced the other party." Melcher v. Apollo Medical Fund Management L.L.C., 105 A.D.3d 15 (2013).274 Madison Co. LLC v Ramsundar, 2016 NY Slip Op 30530(U) (Sup Ct, NY County 2016).
Courts also have broad discretion to fashion a remedy for spoliation in the interest of justice (Ortega v City of New York, 9 NY3d 69 [2007]), generally finding that sanctions are warranted when prejudice is severe. see e.g., Kirkland v New York City Hous. Auth., 236 AD2d 170, 175 (1st Dept 1997); Squitieri v City of New York, 248 AD2d 201, 204 (1st Dept 1998). Courts have defined spoliation as the intentional or negligent destruction of "key" or "crucial" evidence, and have held that sanctions are warranted when "crucial items of evidence" are destroyed. Kirkland, 236 AD2d at 173; see also Atlantic Mutual Insurance Co. v Sea Transfer Trucking Corp., 264 AD2d 659, 660 (1999); see DeKenipp v Rockefeller Center, Inc., 17 Misc. 3d 1138(A) (Sup Ct NY Cty 2007) (holding that "[s]poliation is the loss, destruction, or alteration of key evidence to a lawsuit"); Mudge, Rose, Guthrie, Alexander & Ferdon v Penguin Air Condition Corp., 221 AD2d 243 (1st Dept 1995).
In 274 Madison Co., this Court, in its discretion, declined to impose any spoliation sanctions against the defendant where he maintained the documents sought in his home until they were destroyed by hurricane Sandy. In so holding, this Court, citing Whitfield v Moriello, 71 AD3d 415, 416 (1st Dept 2010), held that "sanctions are not appropriate where records are destroyed for reasons of natural disaster."
Here, Stain testified that the incident report prepared following the incident was destroyed in Hurricane Sandy. Thus, spoliation sanctions are not warranted with respect to that document. Although Arnold claims that spoliation sanctions are also warranted because the defendants did not produce their written procedures for cleaning and/or maintaining the lobby, he clearly was not prejudiced by any failure to receive any such written procedures given Thurton's admission that "[w]hatever needs to be done in the lobby is my job." Doc. 68 at 14-15. See Cataudella v 17 John St. Assoc., LLC, 140 AD3d 508, 509 (1st Dept 2016).
In support of the cross motion, plaintiff relies on Fedele v Rose, 2014 NY Slip Op 30554(U) (Sup Ct Suffolk County 2014), a medical malpractice action, in which spoliation sanctions were imposed on medical provider defendants where they were found to have negligently maintained the medical records of the plaintiff's decedent, thereby depriving the plaintiff of the opportunity to prosecute her claim. However, as noted above, such prejudice is not present here. Thus, Arnold's cross motion is denied.
This Court has considered the parties' remaining contentions and finds them to be without merit or unnecessary to address given the findings above.
Therefore, in light of the foregoing, it is hereby:
ORDERED that the motion by defendants Westbeth Corp. HDFC Inc. and Phipps Houses Services Inc. for summary judgment dismissing the complaint pursuant to CPLR 3212 is denied; and it is further
ORDERED that the cross motion by Arnold Hinton individually and as the Administrator of the Estate of Juliette Goolsby-Hinton for spoliation sanctions pursuant to CPLR 3126 is denied; and it is further
ORDERED that the parties are required to appear for a previously scheduled Early Settlement Conference with JHO Miles Vigilante on October 30, 2019 at 80 Centre Street, Room 106 at 2:15 p.m.; and it is further
ORDERED that this constitutes the decision and order of the court. 9/19/2019
DATE
/s/ _________
KATHRYN E. FREED, J.S.C.