Opinion
Index Nos. 159050/2019 595366/2020 Motion Seq. No. 002
05-19-2023
JACK MURRAY, Plaintiff, v. FOUR SEASONS HOTELS LIMITED, 30 PARK PLACE HOTEL LLC D/B/A FOUR SEASONS HOTEL NEW YORK DOWNTOWN, Defendant. FOUR SEASONS HOTELS LIMITED, Plaintiff, v. HARVARD PROTECTION SERVICES, LLC, Defendant.
Unpublished Opinion
Motion Date 01/06/2022
PRESENT: HON. LYLE E. FRANK, Justice
DECISION + ORDER ON MOTION
LYLE E. FRANK, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 62, 63, 64, 65, 66, 67, 68, 69, 70, 71,72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91,92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107 were read on this motion to/for JUDGMENT - SUMMARY.
Plaintiff commenced this action to recover for alleged personal injuries he suffered on August 23, 2019, when he was opening a large wood panel door, the door became dislodged and fell down onto plaintiff, at the Four Seasons Hotel, located at 27 Barclay Street, New York, NY.
Defendants, Four Seasons Hotels Limited and 30 Park Place Hotel LLLC D/B/A Four Seasons Hotel New York Downtown, on the grounds that neither had actual or constructive notice of the alleged defect and that immediately preceding the accident there was not a readily apparent defective condition. Plaintiff opposes the instant motion and cross moves for summary judgment. For the reasons set forth below, defendants' motions for summary judgment is granted, plaintiff s motion is denied, and the complaint is dismissed in its entirety.
The third-party action was previously discontinued. See NYSCEF Doc. 68.
Background
On August 23, 2019, plaintiff was employed by Harvard Security as the Fire Safety Director at the Four Seasons Hotel. As part of his employment duties, plaintiff was required to monitor the fire safety panel which was located behind bi-fold doors in the hotel lobby by the entrance.
Plaintiff testified that he mentioned to an employee, that he believed to be hotel maintenance person, that the doors were loose. Plaintiff did not recall when he spoke to the alleged hotel maintenance person. Other than this one occasion, plaintiff did not complain or mention the door to his employer or any other entity.
Plaintiff testified that just before the accident, the subject door opened the same way it always did, then got stuck at some point, then the door fell down.
Applicable Law
A party moving for summary judgment "must make prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). The "facts must be viewed in the light most favorable to the non-moving party" (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012] [internal quotation marks and citation omitted]). Once the moving party has met this prima facie burden, the burden shifts to the non-moving party to furnish evidence in admissible form sufficient to raise a material issue of fact (Alvarez, 68 N.Y.2d at 324).
The moving party's "[f]ailure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (id.).
It is well settled that absent proof that a defendant actually created the dangerous condition or, had actual or constructive notice of the same, there can be no liability on a claim for premises liability (Piacquadio v Recine Realty Corp., 84 N.Y.2d 967, 969 [1994]; Bogart v. FW. Woolworth Company, 24 N.Y.2d 936, 937, [1969]; Armstrong v Ogden Allied Facility Management corporation, 281 A.D.2d 317 [1st Dept 2001]; Wasserstrom v New York City Transit Authority, 267 A.D.2d 36, 37 [1st Dept 1999]; Allen v Pearson Publishing, 256 A.D.2d 528, 529 [2d Dept 1998]; Kraemer v K-Mart Corporation, 226 A.D.2d 590 [2d Dept 1996]).
A defendant is charged with having constructive notice of a defective condition when the condition is visible, apparent, and exists for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy the same (Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837 [1986]). The notice required must be more than general notice of any defective condition (id. at 838; Piacquadio at 969). Instead, notice of the specific condition alleged at the specific location alleged is required and, thus, a general awareness that a dangerous condition may have existed, is insufficient to constitute notice of the particular condition alleged to have caused an accident (Piacquadio at 969). The absence of evidence demonstrating how long a condition existed prior to a plaintiffs accident constitutes a failure to establish the existence of constructive notice as a matter of law (Anderson v Central Valley Realty Co., 300 A.D.2d 422, 423 [2d Dept 2002], Iv denied 99 N.Y.2d 509 [2008]; McDuffie v Fleet Fin. Group, 269 A.D.2d 575 [2000]). Alternatively, a defendant may be charged with constructive notice of a hazardous condition if it is proven that the condition is one that recurs and about which the defendant has actual notice (Chianese v. Meier, 98 N.Y.2d 270, 278 [2002]; Uhlich v Canada Dry Bottling Co. of NY, 305 A.D.2d 107 [2003]). If such facts are proven, the defendant can then be charged with constructive notice of the condition's recurrence (id.; Anderson at 422).
Generally, on a motion for summary judgment a defendant establishes prima facie entitlement to summary judgment when the evidence establishes the absence of actual or constructive notice (Hughes v Carrots Corporation, 248 A.D.2d 923, 924 [3d Dept 1998]; Edwards v Wal-Mart Stores, Inc., 243 A.D.2d 803 [3d Dept 1997]; Richardson-Dorn v Golub Corporation, 252 A.D.2d 790 [3d Dept 1998]). If defendant meets its burden it is then incumbent on plaintiff to tender evidence indicating that defendant had actual or constructive notice (Strawman v Great Atlantic and Pacific Tea Company, Inc., 252 A.D.2d 384, 385 [1st Dept 1998]).
Further, constructive notice will not be imputed where the defect is latent. Bean v Ruppert Towers Hous. Co., 274 A.D.2d 305 [1st Dept 2000]; Barr err a v New York City TR. Auth., 61 A.D.3d 425 [1st Dept 2009], The Court finds that defendants have established that the defect that caused the accident were latent defects. Defendants have established a lack of actual notice and constructive notice as the record is devoid of any complaints or visible defects with the subject door. The Court finds that he complaint allegedly made by plaintiff to a maintenance person is a feigned issue of fact, as there is no indication who the person was that the alleged complaint was made to, nor that such person had any responsibility to either fix the door or alert someone about the door.
Plaintiffs untimely Cross-Motion
Notwithstanding the tardiness of plaintiffs cross-motion, in addition to a lack of good cause shown for the delay, the Court will address the merits of plaintiffs motion. Plaintiff opposes the instant motion for summary judgment and simultaneously cross-moves for summary judgment. Plaintiff fails to meet its burden with respect to its contention that the doctrine of res ipsa loquitur applies. Moreover, plaintiff fails to raise a triable issue of fact to rebut defendants' prima facie showing.
Plaintiff s reliance on the doctrine of res ipsa loquitur is unavailing. A plaintiff may rely on the doctrine of res ipsa loquitur to establish a defendant's liability when: "(1) the event is of the kind that ordinarily does not occur in the absence of someone's negligence; (2) the event was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) the accident was not due to any voluntary action or contribution on the part of the plaintiff' (Valdez v Upper Creston, LLC, 201 A.D.3d 560, 561 [1st Dept 2022]). Granting summary judgment on liability based upon res ipsa loquitur is granted only in rare instances (see Maroonick v Rae Realty, LLC, 205 A.D.3d 423 [1st Dept 2022]), and "only when the plaintiffs circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable" (Morejon v Rais Constr. Co., 7 N.Y.3d 203, 209 [2006]). Plaintiff has not established that this is one of those instances (see Barney-Yeboah v Metro-North Commuter R.R., 25 N.Y.3d 945, 946 [2015], revg 120 A.D.3d 1023 [1st Dept 2014] [denying summary judgment to plaintiff who was struck by a ceiling panel on a train that led to the train's HVAC system]). Furthermore, plaintiff has not established that the door was under the exclusive control of defendants.
Plaintiff cites to a plethora of cases regarding transitory conditions and the burden to inspect the locations. Those cases are distinguishable from the instant action, where the undisputed testimony of the non-party repairman, Mr. Omar Rodriguez, a witness subpoenaed by the plaintiff, establishes that the defect that caused plaintiff s accident was a latent defect, not readily apparent. Further, plaintiff's expert affidavit creates a feigned issue of fact as he opines that the door not being flush with the wall, according to a video and not a physical inspection of the premises, caused the accident. The expert affidavit does not dispute that the wear and tear of pivots caused the door to become dislodged, consistent with the testimony of Mr. Rodriguez.
Here, as indicated above, the Court finds that defendants have established that they had neither actual nor constructive notice of the alleged defect. As such based on the precedent discussed above, the defendants have made out prima facie entitlement to judgment as a matter of law. The Court has reviewed plaintiff's remaining contentions and finds them unavailing. Accordingly, it is hereby
ADJUDGED that defendants' motion for summary judgment is granted and the plaintiff's cross-motion for summary judgment is denied; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment of dismissal accordingly.