Opinion
No. 2019-50494 Motion Sequence No. 2
04-12-2021
ANTHONY PARCESEPE, Plaintiff, v. TOPS MARKETS, LLC d/b/a TOPS FRIENDLY MARKETS and RIC RHINEBECK ASSOCIATES, LLC, Defendants.
Unpublished Opinion
DECISION & ORDER
MCLOUGHLIN, J. Acting Supreme Court Justice
The following papers were read and considered in deciding the defendants' motion for summary judgment:
NYSCEF Docket Numbers 21 - 48
In this negligence action, the plaintiff seeks damages for personal injury allegedly sustained after slipping in a puddle of water located on the floor of aisle 9 at the supermarket leased by defendant Tops Markets, LLC ("Tops'') and owned by defendant R1C Rhinebeck Associates, LLC ("Rhinebeck") located on Route 9 in Rhinebeck, New York.
The plaintiff commenced this action against Tops with the filing of a summons and complaint on February 5, 2019. The plaintiff subsequently filed an amended complaint, adding Rhinebeck as a defendant [see NYSCLF Docket No. 6], The amended complaint asserted a cause of action sounding in common law negligence against each defendant. The defendants answered the amended complaint and asserted numerous affirmative defenses. After joinder of issue and discovery, the defendants moved for summary judgment dismissing the complaint. The plaintiff opposed the motion.
FACTUAL BACKGROUND
On June 24, 2018, the plaintiff, a resident of Florida, was visiting relatives in Rhinebeck. At approximately 3:00 p.m., he drove to Tops on Route 9 in Rhinebeck to purchase a few grocery items. After he entered the store, there was a downpour [see Pltf Dcp Tr, NYSCEF Docket No. 28, p 15]. He was carrying in his hands 2 gallons of iced lea and a 5-pound bag of potatoes and went down aisle 9 to reach the checkout counter [id. at p 16]. In further describing the incident, the plaintiff stated that:
I was just walking and I all of a sudden hit some liquid on the floor, my foot slid, and 1 did not fall but 1 did twist. I sort of tried to recover, it happened so quickly, and that was it [id. at p 18].
He "assumed] the liquid was water" [id]. When asked how he knew it was water, the plaintiff answered "[i]t was clear, I'm guessing" [id.]. The plaintiff did not notice the liquid before he slid. He described a round puddle of approximately 14-15 inches in diameter. The plaintiff "assum[ed] it came from the skylight above [id at p 21 ]. However, the plaintiff admitted that he "did not see any water dripping" from the ceiling, but the puddle was directly under a skylight [id. at p 22].
After he slipped, the plaintiff saw an employee at the end of the aisle and asked that employee to get the manager [id. at pp 24-25]. The assistant store manager, Kzra Culver ("Culver"), and a porter came over to clean up the aisle. The plaintiff recalled that the porter mentioned that "[t]hey still hadn't repaired the skylight or it was supposed to be repaired and they haven't done it yet, something to that... effect" id. at p 61]. Although his back was bothering him, the plaintiff declined medical attention offered by Culver at that time. He went to urgent care later that evening [id- at pp 25, 35 -36].
The record is devoid of any statements or testimony from this employee.
Culver testified at his deposition that in the two years prior to the incident, he had no recollection of noticing any skylight in aisle 9 leaking [Culver Dep Tr, NYSCEF Docket No. 29, pp 6-10], nor was he aware of any issues regarding the subject skylight [id. at p 19J. Culver further testified that he walked the aisles of the supermarket every one to two hours and did not remember any complaints regarding aisle 9 as of his last walk through before the incident [id. at p 23]. Culver did not specify the last time he walked down aisle 9 prior to the incident. Nor did he recall any conversation with the porter at the time of the incident [id. at p 22], Culver filled out an incident report which stated, in pertinent part:
There arc no statements or testimony by the porter in the record.
Customer said he [was] walking down aisle and started to slip on a puddle of water and claimed he caught himself, injuring his lower/mid back and shoulders. Upon my arrival a porter was trying to dry up water on the floor and the customer was taking pictures of the skylight. Me told me it was leaking... [NYSCEF Docket No. 45].
DISCUSSION
Because summary judgment "deprives the litigant of its day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" [Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974)]. "But when there is no genuine issue to be resolved at trial, the case should be summarily decided" [id.]. "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact"' [Alvarez v Prospect Hospital, 68 N.Y.2d 320. 324 (1986)]. ''Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" [Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1985)]. "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" [Alvarez, supra, at 324]. "Negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties arc in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination" [Ugaririza v. Schmieder, 46 N.Y.2d 471, 474 (1979); see also Davis v. Federated Depl. Stores, Inc., Ill. A.D.2d 514, 515 (2d Dept. 1996)].
a. Tops' Motion
''In a premises liability case ... 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 allegedly dangerous or defective condition nor had actual or constructive notice of its existence" [Ilanney v. White Plains Galleria, LP, 157 A.D.3d 660, 661 (2d Dept. 2018) (citations omitted)]. "A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discovery and remedy it" [Cho Lun Yeung v Selfhelp (KJV) Assoc, LP, 170 A.D.3d 653, 653 (2d Dept 2019), citing Gordon v Am. Museum of Natural History, 67N.Y.2d836(1986)].
Tops has failed to meet its prima facie burden that it did not have constructive notice of the alleged dangerous condition. Culver testified that he walked the aisles of lops every one to two hours. However, there was no testimony or evidence offered as to the last time that Culver walked aisle 9 in relation to the time of the plaintiffs accident [see Ilanney, 157 A.D.3d at 661 (to meet prima facie burden on issue of lack of constructive notice, "the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff [slipped]")]- Moreover, Tops presented no testimony or affidavit from the porter, or the unidentified store employee present at the time of the incident, regarding when aisle 9 was last cleaned or inspected relative to the incident. Thus, in the absence of evidence as to when fops last inspected or cleaned aisle 9 prior to the incident, it has failed to establish, prima facie, thai ii lacked constructive notice of the allegedly dangerous condition. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the plaintiffs opposition papers [Winegrad, supra].
b. Rhinebeck '$ Motion
It is well-settled that "-[a]n oul-of-possession landlord is not liable for injuries caused by dangerous conditions on leased premises in the absence of a statute imposing liability, a contractual provision placing the duty to repair on the landlord, or by a course of conduct by the landlord giving rise to a duty" [Lugo v. Austin-Forest Assoc, 99 A.D.3d 865, 866 (2d Dept. 2012) (citations omitted); see also Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d 10 (2d Dept. 2011); Notskas v. LongwoodAssociates, LLC, 112 A.D.3d 599 (2d Dept. 2013); Battels v. Rack. 164 A.D.3d 1202 (2d Dept. 2018)].
The lease documents submitted by Rhinebeck in support of its motion establish that Rhinebeck relinquished all control over the subject premises to its lessee [see Amended and Restated Ground Lease and Lease Assignment and Assumption Agreement, N YSCEF Docket Nos. 36 & 38]. Rhinebeck1s submissions also established that it was Tops that was solely responsible to select and hire various contractors to repair the premises, including the roof and the skylights. After the incident, Tops placed a work order to have the subject skylight repaired. While post-accident repairs of the subject skylight are insufficient to establish negligence, they are nevertheless relevant to establishing control over the premises [ses Soto v. CBS Corporation. 157 A.D.3d 740 (2d Dept. 2018); Del Vecchio v Danielle Assoc. LLC\ 94 A.D.3d 941 (2d Dcpt 2012)]. Moreover, the record supports a course of conduct in which all repairs and maintenance were undertaken by 'lops, and not Rhinebeck [see Culver Supp Dcp Tr, NYSCEF Docket No. 33, p 22 (month after accident Tops put in a request for skylight repairs); see also William Thomas Dep Tr, NYSCEF Docket No. 34 (suslainability specialist and maintenance specialist for rfops regarding other repair work and maintenance)]. Thus, Rhinebeck established its prima facie entitlement lo judgment as a matter of law by demonstrating that it was an out-of-possession landlord which had relinquished control of the premises and was not bound by contract or course of conduct lo maintain the premises [Fox v. Patriot Saloon, 166 A.D.3d 950 (2d Dept. 2018) (citation omitted); handy v. 6902 J3'h Ave. Realty Corp., 70 A.D.3d 649 (2d Dept. 2010) (citation omilted)|.
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiffs contention that Rhinebeck violated the International Property Maintenance Code was not set forth in his amended complaint or bill of particulars and, therefore, was improperly raised for the first time in opposition to the defendants' motion [see Michaele v. Sieph-Leigh Associates, LLC, 178 A.D.3d 820, 821 (2d Dept. 2019); Fox, 166 A.D.3d at 951], In any event, the plaintiff did not establish how this code imposed a non-dclegable duty on Rhinebeck that superseded the very broad lease agreement in which the defendants agreed that Rhinebeck relinquished total control over the premises and that Tops was solely responsible for the operation, control, maintenance and repairs of the premises. Accordingly, Rhinebeck's motion for summary judgment dismissing the complaint insofar as asserted against it is granted, Based on the foregoing, it is hereby
ORDERED that the branch of the defendants' motion for summary judgment dismissing the complaint insofar as asserted against Tops is denied; and it is further
ORDERED that the branch of the defendants' motion for summary judgment dismissing the complaint insofar as asserted against Rhinebcck is granted; and it is further
ORDERED that counsel for the plaintiff and defendant 'fops are directed to appear for a virtual pre-trial conference on May 1.1, 2021, at 9:15 a.m.
The foregoing constitutes the Decision and Order of the Court.