Opinion
Index 813297/2015
01-04-2020
LORI J. OLIVIERI Plaintiff v. BARNES & NOBLE, INC., and STOLTZ REAL ESTATE PARTNERS; Defendants BARNES & NOBLE, INC. Third-Party Plaintiff v. NATIONAL JANITORIAL SOLUTIONS INCORPORATED, ANTHONY CHES TLC CLEANING and ANTHONY CHES INDIVIDUALLY Third-Party Defendants NATIONAL JANITORIAL SOLUTIONS INCORPORATED Second Third-Party Plaintiff v. RJS JANITORIAL, LLC Second Third-Party Defendant
Unpublished Opinion
PRESENT: HON. DIANE V. DEVLIN, JUSTICE
DECISION AND ORDER
DIANE Y. DEVLIN, JUDGE
Upon the foregoing papers, it is ordered that this motion is GRANTED.
The following papers were read on this motion for summary judgment.
Notice of Motion-Affirmation-Exhibits, Docket Numbers 81-95
Answering Affirmation-Exhibits, Docket Numbers 96-102
Replying Affirmation, Docket Number 103
This action sounds in negligence stemming from an alleged slip and fall at Defendant Barnes & Noble store located within the McKinley Mall. Plaintiff claims that a bench seat on which she intended to sit slipped out from her and caused her to fall. Plaintiff claims that floor was waxy and slippery and that Defendant created or had actual or constructive notice of the condition. Defendant contracted with Third-Party Defendant National Janitorial Solutions which then contracted with RJS Janitorial to clean and maintain the store.
On the date of loss the Plaintiff was with children to read for them as part of a church book fair. The readings occurred on a stage in the children's section of the Defendant store, The Plaintiff testified that as she went to sit down on the bench, her buttocks touched the: bench, and she was in a low squat when it began to slide sideways. She testified that she fell and her left shoulder and left leg made contact with the floor. After falling she looked at the floor surface and did not see any foreign substance on it. She further testified that she did not see any coating, liquid, sticky substance, or anything else on the stage that afternoon.
The Plaintiff testified no one told her that the bench slipped. She was not aware that anyone complained about the floor surface. She did not see anyone slip on the stage. There was bright light in the stage area and the whole store. There was: not anything to prevent her from seeing the stage, She testified that she did not see any water marks on the stage. Her foot did not slip when she first stepped on it
The Plaintiff testified that she did not tell anyone at Defendant store about the incident on that day although she stayed and shopped once the reading ended. She saw kids on the:stage before she left and did not see anyone slip or slide. She explained that she used the term "waxy" to describe the floor when she telephoned in the incident a week later. She said waxy because the floor was shiny. She also testified that the shiny look on the floor was from the lighting. She referred to the look as an illusion and that there was a "tackiness" to the right of the bench. She does not know what was on the floor. The incident report indicates that she had a list of people who witnessed the fall, but she testified that she was not aware of anyone who witnessed her fall.
The store manager testified that an outside service cleans the store several hours before opening to the public. The cleaning services never waxed the floor in the retail part of the store. The stage at issue is inspected by store personnel on a daily basis. He was not aware of anyone slipping on the stage floor since he was manager beginning in 2010. He never received complaints that the stage was slippery.
Defendant submits affidavits of representatives of Third-Party Defendants which state that wax was not directed to be used on the stage floor and that the cleaning services did not use wax or polish. Anthony Ches submits an affidavit in which he advises that he cleaned the surface himself on the date of the incident and did not apply wax or polish on it that day or any other day. Instead he damp mopped the stage area, and it was dry by the time he left and before the first customers arrived. He never received any Complaints about the surface Of the stage.
ANALYSIS
The Court finds that Defendant met its burden to show that there is no negligence and that if a condition existed, it had no actual or constructive notice of it. Based on her testimony, Plaintiff fails to identify what condition caused the bench to slide. She did not know who placed the bench on the stage. She described the light that made an illusion On the Wood and that the floor felt tacky-similar to tape-which is. not synonymous with slippery.
Plaintiff must raise a triable issue of fact, and Plaintiff mainly claims in opposition that the motion is premature because depositions are not complete and a Note of Issue has not been filed. However, "the mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny such a motion." Guerro v Milla, 135 A.D.3d635 (1st Dept. 2016).
The Court notes that all attorneys agreed to conduct liability discovery initially. Plaintiff has not submitted an affidavit of an expert who visited and inspected the scene and specifically the stage floor surface. Plaintiff admitted that she does not have the:name of anyone who saw her fall who may be able to provide an: affidavit about the floor and her fall. Plaintiff states that there is an issue of fact because the store manager did not inspect the stage: because he was not present on the date of the incident. However, the Plaintiff waited one week before alerting Defendant to her alleged fall. Plaintiff cannot argue successfully that no one examined the stage on that day when she did not bother to inform store personnel for another week. Since Plaintiff cannot identify the substance that was allegedly slippery and caused the bench to move, the claim that Defendant created the condition or had actual or constructive notice of it is speculative. Quinn v Holiday Health & Fitness, 15 A.D.3d 857 (4th Dept. 2005).
The Court GRANTS the motion and dismisses the Complaint.