Opinion
Index 620971/2018
08-31-2020
JODI LECKIE, Plaintiff, v. KOHL'S DEPARTMENT STORES, INC., Defendant.
SIBEN & SIBEN, LLP Attorney for Plaintiff. GRUVMAN, GIORDANO & GLAWS, LLP Attorney for Defendant.
Unpublished Opinion
SIBEN & SIBEN, LLP Attorney for Plaintiff.
GRUVMAN, GIORDANO & GLAWS, LLP Attorney for Defendant.
PRESENT: Hon. GEORGR M. NOLAN Justice.
GEORGE NOLAN JUDGE.
Upon the following papers read on this e-filed motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by defendant, filed March 11. 2020; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers by plaintiff, filed June 26.2020; Replying Affidavits and supporting papers by defendant, filed July 16, 2020; Other; (and after hearing counsel in support arid-opposed to the motion) it is, ORDERED that the motion by defendant Kohl's Department Stores, Inc. for summary judgment dismissing the complaint is granted.
Plaintiff Jodi Leckie commenced this action to recover for personal injuries she allegedly sustained as a result of a trip-and-fall accident that occurred on March 18, 2017, at the commercial premises known as Kohl's, located at 5000 Nesconsct Highway in East Sctauket, New York. Defendant Kohl's Department Stores, Inc. allegedly owned and operated the subject premises at the time of the accident. The accident allegedly occurred when plaintiff tripped and fell on a mannequin stand or display. By the complaint, as amplified by the bill of particulars, plaintiff alleges that defendant was negligent in, among other things, permitting the subject mannequin stand or display to protrude into an aisle, and in creating a hazardous condition, Defendant now moves for summary judgment on the ground that the alleged condition was open and obvious and not inherently dangerous. In support of its motion, defendant submits, among other things, the transcripts of the deposition testimony of plaintiff and Caroline DuRussel, and the affidavit of Caroline DuRussel. In opposition, plaintiff argues, among other things, that triable issues of fact remain as to whether defendant created a dangerous condition by improperly placing the subject mannequin stand. In support of its opposition, plaintiff submits, among other things, her affidavit. The Court notes that defendant cured any defect in the admissibility of the deposition transcript of DuRussel by submitting, in reply, the reporter's certification and the fact that the transcript was forwarded to the witness for review and signature (see CPLR 2001; Gallway v. Muintir, LLC, 142 A.D.3d 948, 38 N.Y.S.3d 28 [2d Dept 20016]).
At plaintiffs deposition, she testified that the subject accident occurred at approximately 2:00 p.m., in the casual wear section. When asked how the accident occurred, plaintiff testified that her right foot tripped over a display platform, causing her to fall onto the tile floor. Plaintiff further testified that the accident occurred when she was in the process of walking from the carpeted area to the tiled area. She described that the subject platform was partially located on the carpeted area and protruded two or three inches onto the tiled flooring. The subject platform allegedly was located within close proximity of a shelving unit for clothes. Plaintiff admitted that nothing obstructed her view of the mannequin stand as she was walking from the carpeted area towards the tiled area at the time of the accident.
DuRussel testified that she was working as a customer service area supervisor in March of 2017, and that she acted as the manager on duty on the date of the accident. She also testified that on the date of the accident, after the accident occurred, she inspected the subject mannequin base. She explained that she "couldn't comprehend where [plaintiff] would have tripped" based upon her inspection. According to her testimony, in the event that a mannequin base protruded onto the tiled area from the carpeted area, defendant's policy was to reposition it so that it was "even with the carpet."
DuRussel avers that on the date of the accident, she was working as a customer service area supervisor at the subject premises. She further avers that her responsibilities as a customer service area supervisor included supervising customer service employees and acting as the manager on duty on an as needed basis. According to DuRussel's affidavit, she visited the accident site "shortly" after the accident occurred, and that she observed no defect to the mannequin base. DuRussell contends that the mannequin base was located on the carpeted area in the misses section, and that nothing was covering or obscuring it.
A landowner, or a party in possession or control of real property, has a duty to maintain its property in a reasonably safe condition (see Kellman v. 45 Tiemann Assoc, 87 N.Y.2d 871, 638 N.Y.S.2d 93 7 [ 1995]; Bishop v. Pennsylvania Ave. Mgt., LLC, 183 A.D.3d 685, 123 N.Y.S.3d 685 [2d Dept 2020]; Kelly v. Roy C. Ketcham High Sch., 179 A.D.3d 653, 113 N.Y.S.3d 572 [2d Dept 2020]). There is no duty to protect or to warn against an open or obvious condition on the property that is not inherently dangerous as a matter of law (see Spina v. Brookwood Ronkonkoma, LLC, 185 A.D.3d 621, 124 N.Y.S.3d 81 [2d Dept 2019]; Holmes v. Macy's Retail Holdings, Inc., 184 A.D.3d 811, 124 N.Y.S.3d 582 [2d Dept 2020]; Swinney v. County, 179 A.D.3d 731, 113 N.Y.S.3d 595 [2d Dept 2020]). A condition is open and obvious where it is readily observable by those employing the reasonable use of their senses, based on the circumstances at the time of the accident (see Robbins v. 237 Ave. X, LLC, 177 A.D.3d 799, 113 N.Y.S.3d 235 [2d Dept 2019]; Ochoa-Hoenes v. Finkelstein, 172 A.D.3d 1080, 101 N.Y.S.3d 81 [2d Dept 2019]; Davidoff v. First Dev. Corp., 148 A.D.3d 773, 48 N.Y.S.3d 755 [2d Dept 2017]). The question of whether a condition is open and obvious cannot be divorced from the surrounding circumstances and generally is a question for the fact finder to resolve (see Robbins v. 237 Ave. X, LLC, supra; Davidoff v. First Dev. Corp., supra; Simon v. Comsewogue Sch. Dist., 143 A.D.3d 695, 39 N.Y.S.3d 180 [2d Dept 2016]). Similarly, whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the specific facts of the case (see Holmes v. Macy 's Retail Holdings, Inc., supra; Ritsso v. Home Goods, Inc., 119 A.D.3d 924, 990 N.Y.S.2d 95 [2d Dept 2014]). Proof that a dangerous condition is open and obvious does not preclude a finding of negligence, but is relevant to the issue of the plaintiffs comparative negligence (see Karpel v. National Grid Generation, LLC, 174 A.D.3d 695, 106 N.Y.S.3d 99 [2d Dept 2019]; Kastin v. OltrMoshe Torali Inst, Inc., 170 A.D.3d 697, 95 N.Y.S.3d 292 [2d Dept 2019]; Crosby v. Southport, LLC, 169 A.D.3d 637, 94 N.Y.S.3d 109 [2d Dept 2019]). Accordingly, a defendant must establish, prima facie, that the alleged condition was open and obvious and not inherently dangerous to obtain summary judgment (see Karpel v. National Grid Generation, LLC, supra; Erario v. Wen Shirley, LLC, 169 A.D.3d 770, 91 N.Y.S.3d 899 [2d Dept 2019]; Crosby v. Southport, LLC, supra).
Defendant established its prima facie entitlement to summary judgment by demonstrating, prima facie, that the subject mannequin stand or platform was open and obvious, and that it was not inherently dangerous (see Nannariello v. Kohl's Dept Stores, Inc., 161 A.D.3d 1089, 76 N.Y.S.3d 235 [2d Dept 2018]; Dapolito v. Stop & Shop Supermarket, 90 A.D.3d 693, 934 N.Y.S.2d 337 [2d Dept 2011 ]; Tenenbaum v. Best, 21 Ltd., 15 A.D.3d 646, 790 N.Y.S.2d 236 [2d Dept 2005], h denied 5 NY3d 702, 799 N.Y.S.2d 773 [20051). In support of its motion, defendant submitted, among other things, plaintiffs deposition testimony, which indicated that nothing obstructed her view of the subject mannequin stand or platform at the time of the accident (see Gallub v. Popei's Clam Bar, Ltd., of Deer Park, 98 A.D.3d 559, 949 N.Y.S.2d 467 [2d Dept 2012]; Zimkind v. Costco Wholesale Corp., 12 A.D.3d 593, 785 N.Y.S.2d 108 [2d Dept 2004]; cf. Stadler v. Lord & Taylor LLC, 165 A.D.3d 500, 86N.Y.S.3d 30 [lstDept2018]). Thus, the burden shift to plaintiff to raise a triable issue of fact (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]).
In opposition, plaintiff failed to raise a triable issue of fact (see Nannariello v. Kohl's Dept Stores, Inc., supra; Dapolito v. Stop & Shop Supermarket, supra; Tenenbaum v. Best, 21 Ltd., supra). The claimed violation of defendant's internal rules or guidelines is insufficient to raise a triable issue of fact (see Byrd v. Walmart, Inc., 128 A.D.3d 629, 8 N.Y.S.3d 428 [2d Dept 2015]; Branham v. Loews Orpheum Cinemas, Inc., 31 A.D.3d 319, 819 N.Y.S.2d 250 [1st Dept 2006], aff'd 8 N.Y.3d 931, 834 N.Y.S.2d 503 [2007]). A violation of a company's internal rules, standing alone, is insufficient to establish negligence, and where such rules require a standard beyond the standard of reasonable care, a breach cannot be considered evidence of negligence (see Gilson v. Metropolitan Opera, 5 N.Y.3d 574, 807 N.Y.S.2d 588 [2005 J; Byrd v. Walmart, Inc., supra). Moreover, plaintiffs statement in her affidavit that her view of the subject mannequin stand was partially obstructed at the time of the accident presented a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony that nothing obstructed her view of it at the time of the accident (see Bfuth v. Bias Yaakov Academy for Girls, 123 A.D.3d 866, 999 N.Y.S.2d 840 [2d Dept 2014J; Russ v. Fried, 73 A.D.3d 1153, 901 N.Y.S.2d 703 [2d Dept 2010]; Sherman-Schiffman v. Costco Wholesale, Inc., 63 A.D.3d 1031, 884 N.Y.S.2d 760 [2d Dept 2009]). Further, plaintiffs allegation that the subject mannequin stand protruded approximately two to three inches onto the tiled area from the carpeted area did not raise a triable issue of fact as to whether it was inherently dangerous (see Matteo v. Kohl's Dept. Stores, Inc., 533 Fed.Appx 1 [2d Cir 2013]; cf. Jackson v. Paramount Decorators Inc., 132 A.D.3d 583, 18 N.Y.S.3d 384 [1st Dept 2015]).
Accordingly, the motion by defendant for summary judgment dismissing the complaint is granted.