Opinion
42639/03.
Decided March 7, 2008.
Plaintiff Attorney: Regina Darby, Esq, Defendant Attorney Beth Gereg, Esq, Cruser, Mitchell Novitz, LLP.
The defendants move for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the complaint. Benita Jones, plaintiff herein, was injured while roller skating at the defendants's skating rink on August 24, 2002. Ms. Jones alleges that, prior to her fall, a foreign substance had accumulated in and around the skating area. Then, while she was skating in the rink, the subject foreign substance created unexpected friction, causing her to fall and sustain injuries.
The plaintiff commenced the instant action against the defendants, alleging that it and its agents either created, exacerbated or had notice of the condition. The defendants now moves for summary judgment, arguing that it did not create or have notice of the alleged dangerous condition. The defendants contend that, contrary to the plaintiff's argument, the accident occurred when she attempted to avoid another skater, thereby assuming the risk of injury to herself and relieving the defendants of any liability. The defendants further contend that at her deposition, the plaintiff testified inconsistently regarding the facts of the subject accident.
In opposition, the plaintiff asserts that both she and a non-party witness testified at each of their respective depositions that they each observed a dangerous sticky residue on the skating rink for at least twenty minutes prior to the plaintiff's fall. They also testified that the defendants' employees were stationed at various places in and around the rink during the same time period. For this reason, argues the plaintiff, the defendants cannot demonstrate, as a matter of law, that they did not have constructive notice of the subject condition.
The instant motion is denied. A defendant who moves for summary judgment 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 (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). It is generally improper for a trial court to grant a motion for summary judgment in an action that alleges negligence, as whether the parties acted reasonably is almost always a question of fact (Johannsdotter v Kohn, 90 AD2d 842; see also Chahales v Garber, 195 AD2d 585). Moreover, when determining the outcome of a defendant's motion for summary judgment, opposed by a plaintiff, a trial court is required to accept the plaintiff's pleadings as true and resolve all inferences in the manner most favorable to the plaintiff (Henderson v City of New York, 178 AD2d 129, 130; see also Gibson v American Export Isbrandtsen Lines, 125 AD2d 65, 74; Strychalski v Mekus, 54 AD2d 1068, 1069; McLaughlin v Thaima Realty Corp., 161 AD2d 383, 384). Lastly, parties seeking summary judgment have the burden of establishing their prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of their claim or defense, rather than by pointing to gaps in the plaintiff's proof (Nationwide Prop. Cas. v Nestor, 6 AD3d 409, 410; Katz v PRO Form Fitness, 3 AD3d 474, 475; Kucera v Waldbaums Supermarkets, 304 AD2d 531, 532).
Landowners and their agents, such as the defendants herein, owe people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition (Tagle v Jakob, 97 NY2d 165; Basso v Miller, 40 NY2d 233). "In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence" (Lezama v 34-15 Parsons Blvd, LLC, 16 AD3d 560, 560). However, a defendant who moves for summary judgment in a premises liability matter 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 (Ulu v ITT Sheraton Corp., 27 AD3d 554, 554 citing Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d 511, 512; see also Britto v Great Atl. Pac. Tea Co., Inc., 21 AD3d 436). Constructive notice of a dangerous condition is defined as one that was visible and apparent for a sufficient period of time to afford the defendants' employees a reasonable opportunity to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836, 837; see also Crawford v AMF Bowling Ctrs., Inc., 18 AD3d 798).
Here, given that both the plaintiff and the non-party witness testified under oath at their depositions that the subject foreign substance existed in and around the rink for at least twenty minutes, and given that the defendants employees were stationed in the middle of and around the rink during the same time period, the defendants have not established, prima facie, that they did not have constructive notice of the alleged condition (see e.g. Indence v 225 Union Ave. Corp., 38 AD3d 494, 495; Jackson v Fenton, 38 AD3d 495, 496; Yioves v T.J. Maxx, Inc., 29 AD3d 572). The court is constrained to accept the plaintiff's sworn recitation of the facts. Indeed, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . on a motion for summary judgment" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 314-315, quoting Anderson v Liberty Lobby, Inc., 477 US 242, 255; see also Scott v Long Is. Power Auth., 294 AD2d 348, 348). Moreover, to the extent that the defendants correctly note that the plaintiff and/or the non-party witness provided inconsistent facts in their deposition testimonies, said inconsistencies demonstrate the existence of a triable issue of material fact, requiring that this court deny the instant motion for summary judgment (Venetal v City of New York, 21 AD3d 1087, 1088; see also Greco v Posillico, 290 AD2d 532; Granados v New York City Hous. Auth., 255 AD2d 249, 250).
Inasmuch as the defendants did not establish their entitlement to judgment as a matter of law, this court need not consider any other of the plaintiff's contentions in opposition to the instant motion (see e.g. Bloechle v Ranieri, 21 AD3d 435). Resolving, as the court must, all inferences in the plaintiff's favor (see e.g. Brandes v Incorporated Vil. of Lindenhurst, 8 AD3d 315, 316; Genova v Regal Mar. Indus., 309 AD2d 733, 734), the defendants are not entitled to summary judgment. For these reasons, the motion is denied.
This constitutes the decision and order of the court.