Opinion
35095/2007.
Decided May 5, 2010.
Plaintiff Carmen Morales, by Neimark Neimark LLP, New York, New York.
Defendants City of New York and Temco Services Industries, Inc., by Rachel Maida, Esq. of Lester Schwab Katz Dwyer, LLP, New York, New York.
Defendant Dinkes Schwitzer, William Gentile, GODOSKY GENTILE P.C., NEW YORK, NY.
Defendant Herbert Pererria, R. Evon Howard, Furman Kornfeld Brennan, LLP, New York, New York.
By notice of motion filed October 8, 2009, defendants City of New York and Temco Service Industries, Inc. (hereinafter "Temco") jointly move pursuant to CPLR § 3212 for an order granting them summary judgment dismissing the complaint.
BACKGROUND
On September 18, 2007, plaintiff commenced this action by filing a summons and a verified complaint with the Kings County Clerk's office. Plaintiff's verified answer makes forty seven allegations of fact in support of one cause of action for damages for personal injuries sustained as a consequence of the defendants' alleged negligence.
Both defendant joined issue by their respective answers served upon the plaintiff in October of 2007. The City of New York's answer pleads four affirmative defenses and one cross-claim against Temco for indemnification. Temco's answer pleads four affirmative defenses.
MOTION PAPERS
Defendants' motion papers consist of an attorney's affirmation and eleven annexed exhibits labeled A through K. Exhibit A is the summons and complaint. Exhibit B is the City of New York's answer. Exhibit C is Temco's verified answer. Exhibit D is a transcript of plaintiff's examination held on August 16, 2007, pursuant to General Municipal Law § 50-H. Exhibit E is a transcript the plaintiff's deposition conducted on July 14, 2008. Exhibit F is a transcript of the deposition of defendant City of New York through witness Gregory Anthony Abood conducted on December 9, 2008. Exhibit G is a transcript of the deposition of defendant Temco through Edison Vinueza conducted on February 4, 2009. Exhibit H is a transcript of the deposition of Hager Abdel-Kerim, a non-party witness conducted on September 4, 2009. Exhibit I is a copy of the note of issue filed on August 10, 2009. Exhibit J is plaintiff's verified bill of particulars. Exhibit K is a certified chart produced by the National Climatic Data Center of the National Oceanic and Atmospheric Administration, an agency under the aegis of the Federal Department of Commerce.
Plaintiff's motion papers consist of an attorney's affirmation in opposition and two annexed exhibits labeled A and B. Exhibit A is an unsworn statement of the plaintiff entered on a New York City Department of Education written statement form. Exhibit B is an unsworn statement of Giovanni Cucalon, a non-party.
Defendants' submitted their attorney's affirmation in reply to which they annexed eleven exhibits labeled A through K. Exhibit A is plaintiff's response to defendants' combined demands. Exhibit B is a preliminary conference order. Exhibit C is a central compliance part order. Exhibit D and E are central compliance part orders. Exhibit F is plaintiff's verified supplemental bill of particulars. Exhibit G is a copy of defendats' notice of motion seeking, among other things, an order striking the instant case from the trial calendar. Exhibit H is the affirmation of plaintiff's attorney opposing the defendants' motion labeled Exhibit G. Exhibit I is an affidavit of Gregory Abood. Exhibit J is an affidavit of Grace Grillo. Exhibit K is an affidavit of Grace Reeves.
Plaintiff submitted, a supplemental affidavit of non-party Giovanni Cucalon containing the identical content to Mr. Cucalon's unsworn statement contained in exhibit B of plaintiff's affirmation in opposition. Plaintiff was given permission by this court to cure the inadmissibility of Mr. Cucalon's unsworn statement.
LAW AND APPLICATION
A motion for summary judgment may be granted only when there is no doubt as to the absence of any triable issue of material fact ( Kolivas v. Kirchoff , 14 AD3d 493 [2nd Dept. 2005]). "Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" ( Celardo v. Bell, 222 AD2d 547 [2nd Dept. 1995]). A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact ( Alvarez v. Prospect Hosp., 68 NY2d 320; Napolitano v. Suffolk County Dept. Of Public Works , 65 AD3d 676 [2nd Dept 2009]). Once the movant has met this burden, the burden then shifts to the party opposing the motion to demonstrate via admissible evidence the existence of a factual issue requiring a trial of the action ( Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, 49 NY2d 557, 560).
"Liability for a dangerous or defective condition on [real] property is generally predicated upon ownership, occupancy, control, or special use of the property . . . Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property" ( Usman v. Alexander's Rego Shopping Center, Inc. , 11 AD3d 450 [2nd Dept. 2004]).
"To impose liability upon a defendant in a slip-and-fall action, there must be evidence that a dangerous or defective condition existed, and that the defendant either created the condition or had actual or constructive notice of it" ( Starling v. Suffolk County Water Authority , 63 AD3d 822 [2nd Dept. 2009]).
A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the alleged hazardous condition, nor had actual or constructive notice of its existence for a length of time sufficient to discover and remedy it. To sustain that burden, the defendant must offer some evidence as to when the area in question was last inspected relative to the accident"( Arzola v. Boston Properties Ltd. Partnership , 63 AD3d 655 [2nd Dept. 2009]).
Plaintiff alleges that on March 23, 2007 at approximately 1:00 p.m. she slipped and fell on a wet floor in a hallway at Fort Hamilton High School, located at 8301 Shore Road, Brooklyn, New York (hereinafter "the subject premises").
Defendants do not dispute their ownership, occupancy, or control of this property. Rather, they contend that they neither created the alleged hazardous condition, nor had actual or constructive notice of its existence for a length of time sufficient to discover and remedy it. Defendants presented the following evidence as to when the area in question was last inspected relative to the accident.
Gregory Abood, the assistant principal at the subject premises, stated in his deposition testimony that on the day of the plaintiff's accident it was raining, and a parent teacher conference was scheduled from 1:00 p.m. until 3:00 p.m. He also stated that he was present at the subject premises all day and did not notice any substance on the floor of the corridor prior to 1:30 p.m. He further testified that Temco was a privately contracted company that was responsible for performing janitorial services at the subject premises. He testified that on any given day, there would be ten Temco custodians on staff; the Temco staffers carried walkie talkies and had a phone in their office and they would be contacted by a principal, teacher, or school aide if a spill occurred. Temco would also constantly patrol the premises and would walk the hallways during parent teacher conferences and during rainy weather.
Edison Vinueza, testified at his deposition that he was the building manager of the subject premises. He was responsible for preparing the schedules for Temco employees, ensuring that the building had a stock of supplies, and that the building was in proper working order to be opened each day. Mr. Vinueza worked from 7:00 a.m. until 5 p.m. His staff worked two shifts, 6:00 a.m. to 3:00 p.m. and 3:00 p.m. to 12:00 a.m. Each shift had cleaners. Each employee was assigned to certain areas at different times during the day. According to Mr. Vinueza, Temco employees followed specific procedures on rainy days. Rain mats were placed at entrances to the building and wet floor signs were placed throughout the building. On a rainy day, three wet floor signs were put out on each floor. These wet floor signs were put out in the lobby and in the hallways. If there was a puddle, his office would be called and the cleaners would be notified by a two way radio to clean it.
Hager Abdel-Kerim, who is not a party to this action, testified as follows. In March of 2007, she was a student at Fort Hamilton High School and a witness to plaintiff's accident. On the date of the accident, she was part of a "student leadership team", working at the tables that had been set up on one of the sides of the hallway for the parent teacher conferences. Arriving parents would go to the tables to pick up their children's report cards and to get direction to the classrooms in which the teachers were located. She was sitting at the tables in the hallway since noon and observed plaintiff's accident occur directly in front of her table.
It had been raining heavily that day and the hallway floor became wet in certain areas. A wet floor sign had been posted at the beginning of the hallway. There were lots of mats placed near the entrance of the school and in front of the auditorium. She and other leadership team members were constantly drying the floor, including the area where plaintiff fell, to ensure that the hallway was kept dry. She and her team had completed drying the area around her table immediately before plaintiff's accident occurred. She also observed the school janitors clean the area with a mop "a few times" during the two hours prior to plaintiff's accident and had last cleaned the area approximately thirty minutes prior to plaintiff's accident.
Her team had been distributing umbrella bags to the parents in the school that day, but plaintiff had not used one. Plaintiff was carrying a wet umbrella and walked over to the table where she was working. There were no puddles of water by her table and the portion of the floor where plaintiff fell was completely dry before plaintiff arrived at the table. Plaintiff was standing by the table for a period of approximately thirty seconds, during which time, the umbrella she was carrying was dripping water and forming a puddle. Plaintiff slipped and fell while she was still in front of her table. She was still standing a few feet from plaintiff and was looking down at the dripping umbrella immediately before plaintiff's accident.
Through their presentation of Ms. Abdel-Kerim's deposition testimony, defendants have made a prima facie showing that they neither created the alleged hazardous condition nor had actual or constructive notice of it for a length of time sufficient to remedy it.
As defendants have made their prima facie showing, the burden now lies with plaintiff to offer admissible evidence showing the existence of a factual issue requiring trial of the action. More precisely, plaintiff must come forth with admissible evidence that creates an issue of fact as to whether either defendants created the alleged hazardous condition, or as to whether defendants had notice of it.
Plaintiff attempts to raise a triable issue of fact as to whether defendants had constructive notice through plaintiff's written statement and deposition testimony that a school employee stated that she had previously asked someone to mop up the puddle. However, plaintiff's statement that the school aide had previously asked someone to mop up the puddle is not inconsistent with the deposition testimony of Ms. Abdel-Kerim that she had observed the school janitors clean the area with a mop "a few times" during the two hours prior to plaintiff's accident and had last cleaned the area approximately thirty minutes prior to plaintiff's accident; that she and other leadership team members were constantly drying the floor, including the area where plaintiff fell, to ensure that the hallway was kept dry; and that she and her team had completed drying the area around her table immediately before plaintiff's accident occurred. Plaintiff's assertion that a school employee had previously asked someone to mop up "the puddle" accords perfectly with Ms. Abdel-Kerim's narrative of the events which indicates that defendants were manifestly aware of the wet conditions. Thus, plaintiff's assertion that a school employee had previously asked someone to mop up "the puddle" does conflict with Ms. Abdel Kerim's account that the drip from plaintiff's own umbrella created the puddle upon which plaintiff slipped and fell. It therefore does not raise an issue of fact as to defendants lack of constructive notice of the specific hazardous condition which allegedly caused plaintiff's fall.
Plaintiff also attempts to raise a triable issue of fact as to whether defendants had constructive notice through the affidavit of Giovanni Cucalon, plaintiff's stepson.
Mr. Cucalon, however, was not disclosed as a notice witness during pretrial discovery in spite of multiple court orders, which are annexed to defendants' motion papers, that such witnesses be disclosed. On August 10, 2009, plaintiff filed a note of issue. Only after the filing of the instant summary judgment motion has plaintiff identified Mr. Cucalon for the first time as a witness on the issue of constructive notice. An affidavit of a purported notice witness dated and submitted after the deadline for the exchange of same and after the note of issue had been filed is properly disregarded. ( See, Gallo v. Health Port, Inc. , 62 AD3d 943 [2nd Dept. 2009]).
As defendants have met their prima facie burden and plaintiff has failed to raise a triable issue of fact, defendants' motion for summary judgment dismissing the complaint is granted.
The foregoing constitutes the decision and order of the court.