Opinion
No. 153426/2018
02-09-2021
MARLYN LARAIA and VINCENT LARAIA, Plaintiffs, v. STOP AND SHOP NY, INC., Defendant.
Unpublished Opinion
At an IAS Part 23 of the Supreme Court of the State of New York, held in and for the County of Richmond at 26 Central Avenue, Staten Island, NY 10301 on the 9th day of February, 2021
DECISION & ORDER
Wayne M. Ozzi, J.S.C.
The following papers numbered 1 to 3, read on this motion were submitted on January 21, 2021:
| Papers | Numbered |
| Notice of Motion/Order to Show Cause, and Affidavits/Affirmations and Exhibits Annexed | 1 |
| Affidavit/Affirmation in Opposition and Exhibits Annexed | 2 |
| Reply Affidavit/Affirmation | 3 |
In this action plaintiff Marlyn Laraia seeks recovery in damages as a result of an incident on October 30, 2018 at approximately 9:15 p.m., in which she slipped and fell on food debris (a tomato), while shopping at Defendant's supermarket.
Defendant now moves for summary judgment in its favor. It is asserted that the complaint should be dismissed because Plaintiff cannot establish the Defendant had notice of a defective or dangerous condition. It is claimed that Defendant's "maintenance department makes a detailed inspection of the store each hour and the written report of the inspection completed on the day of the accident failed to show anything on the floor in the area of Plaintiff's accident, including in the inspection conducted right before Plaintiff's fall occurred."
On this issue of the inspection process, Albert Chiappinelli, who identified himself as the nonperishable manager of the store, described the inspection routine at his deposition. He said that a maintenance clerk would use a Telxon gun to walk through the store every hour with a clean sweep cart. This involved the maintenance person walking up and down the aisles "scanning and searching for any kind of products or things that were broken on the floor, or dangerous spots, wet spots." Apparently, the Telxon gun is some sort of scanner, and the clean sweep cart contains cleaning supplies. Mr. Chiappinelli never engaged in a clean sweep procedure himself. He could not recall having any conversation with the maintenance clerk (identified as one Thomas Migdalen) on duty at the time of Plaintiff's fall. Nor could he recall whether he did a final walk through the store himself, prior to closing on the night in question, but he conceded it was part of his routine to do so.
A document known as a clean sweep report was shown to Mr. Chiappinelli. He admitted he never saw it before, and conceded that it does not reveal whether any clean sweeps were missed. It appears to indicate that the area where Plaintiff fell was swept at approximately 8:06 p.m.
On a summary judgment motion, the proponent has the initial burden of coming forward with evidence demonstrating entitlement to judgment as a matter of law, eliminating all material issues of fact. (Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853)). In a slip and fall case such as this, the proponent of summary judgment dismissing the action must make the initial 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 (Fernandez v. Bucknell Realty Ltd. Partnership, 123 A.D.3d 972 (2d Dept.), citing, inter alia, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837). Thus, the initial burden is not on Plaintiff to show that Defendant had the required notice, as movant suggests in its affirmation in support, but rather it is upon Defendant to show the absence thereof. (see, Colt v. Great Atlantic &Pacific Tea Co. Inc., 209 A.D.2d 294, 295).
On the latter issue, Movant relies heavily upon the clean sweep report to demonstrate that it did not have actual or constructive notice of the existence of the potentially hazardous condition for a sufficient length of time to discover and remedy it. In the view of the Court, standing alone, this is insufficient to meet Movant's burden.
In Velocci v. Stop and Shop, 188 A.D.3d 436 (2d Dept.), Defendant sustained its burden and was granted summary judgment dismissing the complaint. In support, Defendant offered its clean sweep log showing its cleaning and inspection procedures, as well as an affidavit by the store's employee who personally inspected the location in question, about an hour and a half before Plaintiff's fall. She said that she would have indicated "hazard" on the log had one been observed during her inspection. At bar, no such affidavit or deposition testimony by Mr. Migdalen has been offered, and no reasonable excuse for the failure to do so has been proffered. That he may be on some unspecified leave of absence does not provide a reasonable excuse.
In Barrios v. Giant Food Stores, LLC, 2018 WL 4940360, a slip and fall case, Defendant offered in support of its summary judgment motion a clean sweep report, as well as the sworn testimony of the employee who personally conducted the clean sweep. The Court of Common Pleas of Franklin County (Pa.) concluded under such circumstances that the moving defendant met its burden, and dismissed the complaint, which was affirmed on appeal.
Similarly, in Krick v. Giant Food Stores, LLC, 2018 WL 1518804, the moving defendant in a slip and fall case relied on a clean sweep log showing no hazards were detected in the area in question prior to Plaintiff's fall. The testimony of its employee who personally conducted the sweep, and who made entries into the log by use of a scanning gun was also offered. In this case, the trial court found triable issues precluding summary judgment in Defendant's favor.
In Metha v. Stop and Shop Supermarket Co., LLC, 129 A.D.3d 1037 (2d Dept.), while no mention of a "clean sweep report" was indicated, Defendant Supermarket offered in support of its summary judgment motion an affidavit by a maintenance worker who personally inspected the area where Plaintiff fell 10 to 15 minutes prior to the accident and who observed no hazardous condition on the floor. He also averred that he had no complaints of any kind about the area in question. The Second Department specifically concluded that this was sufficient to meet Defendant's initial burden.
In sum, the failure to provide evidence from Mr. Migdalen, or any other person with personal knowledge of the clean sweep procedure utilized, related to the issue of Defendant's actual or constructive notice of any hazardous conditions, is fatal to its motion.
Since the moving Defendant failed to establish its prima facie entitlement to judgment as a matter of law, the Court need not address the sufficiency of Plaintiff's opposition (Sesina v. Joy Lea Realty, LLC, 123 A.D.3d 1000, 1001 (2d Dept.), citing Winegrad v. New York University Medical Center, supra).
Finally, the stipulation between the parties dated September 4, 2020, to the effect that Defendant agreed not to rely on any affidavits, etc. of Mr. Migdalen without his being first produced for a deposition, is of no moment, insofar as this motion is concerned. The issue of the sufficiency of the Movant's evidence remains with the Court, irrespective of Defendant's reliance on the clean sweep report.
For these reasons, Defendant's motion is denied.