Opinion
2020-07634 Index No. 612346/18
03-15-2023
Alex MORLAN, respondent, v. ATLANTIC WESTERLY CO., et al., defendants, Westerly Health Foods, Inc., etc., appellant (and a third-Party action).
Vigorito, Barker, Patterson, Nichols & Porter, LLP, Valhalla, NY (Bhalinder L. Rikhye of counsel), for appellant. Levidow, Levidow & Oberman, P.C. (Diamond & Diamond, LLC, Brooklyn, NY [Stuart Diamond ], of counsel), for respondent.
Vigorito, Barker, Patterson, Nichols & Porter, LLP, Valhalla, NY (Bhalinder L. Rikhye of counsel), for appellant.
Levidow, Levidow & Oberman, P.C. (Diamond & Diamond, LLC, Brooklyn, NY [Stuart Diamond ], of counsel), for respondent.
ANGELA G. IANNACCI, J.P., ROBERT J. MILLER, LINDA CHRISTOPHER, LILLIAN WAN, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendant Westerly Health Foods, Inc., appeals from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered September 3, 2020. The order, insofar as appealed from, denied that branch of that defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In January 2018, the plaintiff allegedly was injured when he slipped and fell on a patch of ice while walking on the sidewalk abutting 911 8th Avenue in Manhattan. The portion of the sidewalk where the plaintiff allegedly slipped abutted the Westerly Natural Food Market, a grocery store operated by the defendant Westerly Health Foods, Inc. (hereinafter Westerly). That portion of the sidewalk was partially covered by a sidewalk bridge, also referred to as scaffolding, which was held up by long metal poles, under which were blocks of wood.
As a result of the accident, the plaintiff commenced this action against, among others, Westerly to recover damages for personal injuries, alleging a cause of action sounding in negligence. The plaintiff alleged that Westerly was negligent in, among other things, failing to properly maintain the area where the accident occurred.
Westerly moved for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it. By order entered September 3, 2020, the Supreme Court, inter alia, denied Westerly's motion. Westerly appeals from so much of the order as denied that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it.
A property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition (see Kellman v. 45 Tiemann Assoc., Inc., 87 N.Y.2d 871, 872, 638 N.Y.S.2d 937, 662 N.E.2d 255 ; Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ). A "defendant property owner, or a party in possession or control of real property, who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence" ( San Antonio v. 340 Ridge Tenants Corp., 204 A.D.3d 713, 715, 166 N.Y.S.3d 256 [internal quotation marks omitted]; see Dougherty v. 359 Lewis Ave. Assoc., LLC, 191 A.D.3d 763, 764, 142 N.Y.S.3d 92 ).
A defendant is deemed to have constructive notice of a dangerous condition on its property when the condition is visible and apparent, and existed for a sufficient length of time prior to the accident to permit the defendant's employees to discover the condition and remedy it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 ; Hegeman v. City of Newburgh, 208 A.D.3d 461, 462, 173 N.Y.S.3d 275 ). To establish the lack of constructive notice, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of the accident (see Hegeman v. City of Newburgh, 208 A.D.3d at 462, 173 N.Y.S.3d 275 ; Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598–599, 869 N.Y.S.2d 222 ). "Reference to general cleaning practices is insufficient to establish a lack of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area in question" ( Rong Wen Wu v. Arniotes, 149 A.D.3d 786, 787, 50 N.Y.S.3d 563 ; see Ahmetaj v. Mountainview Condominium, 171 A.D.3d 683, 684, 98 N.Y.S.3d 104 ; cf. Armijos v. Vrettos Realty Corp., 106 A.D.3d 847, 847, 965 N.Y.S.2d 536 ).
Here, in support of its motion, Westerly submitted, among other things, a transcript of the deposition testimony of a shift manager for Westerly who was on duty on the date of the accident. The shift manager testified that, generally, Westerly's maintenance staff was responsible for, among other things, removing snow and ice from the sidewalk outside the store. The shift manager further testified that, generally, the maintenance staff would inspect the sidewalk in the morning, but there was no specific time at which the maintenance staff would perform their inspection. Since Westerly only submitted evidence of its general inspection and cleaning practices and failed to provide any evidence as to when the subject area of the sidewalk was last cleaned or inspected, Westerly failed to establish, prima facie, that it lacked constructive notice of the alleged ice condition (see Hegeman v. City of Newburgh, 208 A.D.3d at 462, 173 N.Y.S.3d 275 ; Pinto v. Walt Whitman Mall, LLC, 175 A.D.3d 541, 545, 107 N.Y.S.3d 373 ; Ahmetaj v. Mountainview Condominium, 171 A.D.3d at 684, 98 N.Y.S.3d 104 ).
"In general, it is for the trier of fact to determine the issue of proximate cause" ( Saporito–Elliott v. United Skates of Am., Inc., 180 A.D.3d 830, 831, 119 N.Y.S.3d 204 ; see Kirby v. Lett, 208 A.D.3d 1174, 1175, 175 N.Y.S.3d 87 ; Elusma v. Jackson, 186 A.D.3d 1326, 1328, 130 N.Y.S.3d 500 ). However, "[t]he question of proximate cause may be determined by the court as a matter of law only when there is but one conclusion that may be drawn from the facts" ( Saporito–Elliott v. United Skates of Am., Inc., 180 A.D.3d at 831, 119 N.Y.S.3d 204 ). "Additionally, there may be more than one proximate cause of an accident" ( Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d 889, 889, 922 N.Y.S.2d 550 ). Here, Westerly's submissions, including the video surveillance footage of the accident, failed to eliminate triable issues of fact as to the proximate cause of the plaintiff's accident, including whether the accident occurred solely as a result of the plaintiff's right foot coming into contact with a pole or a block of wood associated with the sidewalk bridge, or as a result of the plaintiff slipping on an ice patch on the sidewalk (see Saporito–Elliott v. United Skates of Am., Inc., 180 A.D.3d at 831–832, 119 N.Y.S.3d 204 ; Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d at 889–890, 922 N.Y.S.2d 550 ).
Accordingly, the Supreme Court properly denied that branch of Westerly's motion which was for summary judgment dismissing the complaint insofar as asserted against it, without regard to the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
IANNACCI, J.P., MILLER, CHRISTOPHER and WAN, JJ., concur.