Opinion
Index No. 609575/2018 MOTION SEQ. No. 001 - MD
03-08-2022
TAMMY ROBINSON, Plaintiff, v. BOGOPA BRENTWOOD, INC., Defendant.
PLTF'S/PET'S ATTY: Borda, Kennedy, Alsen & Gold, LLP DEFT'S/RESP'S ATTY: Bell Law Group, PLLC
Unpublished Opinion
ORIG. RETURN DATE: 04/30/21
ADJOURNED DATE: 05/27/21
PLTF'S/PET'S ATTY: Borda, Kennedy, Alsen & Gold, LLP
DEFT'S/RESP'S ATTY: Bell Law Group, PLLC
PRESENT: Hon. Vincent J. Martorana
VINCENT J. MARTORANA, J.S.C.
Upon efiled documents numbered 9-18, 20; it is
ORDERED that Defendant's motion seeking summary judgment dismissing Plaintiffs complaint is denied.
The within action seeks damages for personal injuries allegedly sustained by Plaintiff on November 23, 2016 as a result of slipping on cooking oil on the floor of Defendant's "Food Bazaar" supermarket. Issue has been joined, discovery commenced and Defendant now seeks summary judgment dismissing Plaintiffs complaint.
Defendant asserts that it did not create the slippery condition nor did it have actual or constructive notice of it because the oil was dropped on the floor by a customer eight minutes prior to the accident. In support of its motion, Defendant offers an affidavit of Richard Kim ("Kim"), R&M Manager for Defendant. Kim avers that he manages all of Defendant's closed-circuit televisions for surveillance. He states that after an incident or accident occurs, video recordings are preserved and maintained in the regular course of business. Kim certified that the video provided to the court is a true and accurate copy of the recording made at the time of the accident.
The surveillance video provided by Defendant shows that a shopper knocked a large container of cooking oil off the shelf at the recorded time of 13:56:59 and that the cap popped off, spilling some of the contents onto the floor. The shopper then replaced the cap, leaving the spilled container upright on the floor near the puddle of oil and walking away. The surveillance video further shows that at 14:05:34, Plaintiff pushed her shopping cart through the oil and her left foot slid slightly, causing her torso to jerk backward. She staggered for a moment before she regained her balance, continuing to push her cart through the oil spill, then turning to look behind her at the floor. Plaintiffs young son was seated in the cart at the time and it does not appear from the video that either he or the cart were jostled by the incident.
Plaintiff testified at deposition that:
"there was oil right there and I didn't see it and I went over it and I slipped and the cart went up and I caught my son before he fell out [of] the cart" (Plaintiffs deposition p. 17).
Plaintiff further testified that when her foot slipped in the oil:
"I slipped and hit my arm" (p. 18). When asked to repeat her answer she stated:
" I slipped and hurt my leg and my arm and back" (p. 18). When asked if her right leg hit anything she stated: "It hit the floor" (p. 18).
Plaintiff continued, stating that she hurt her shoulder trying to catch her son so that he would not fall out of the cart, that the back of the cart went into the air a bit (pi 9) and that she thinks she twisted her back trying to grab the cart and/or her son (p 20).
In opposition to Defendant's motion, Plaintiffs counsel argues that the amount of time that passed was actually 8 minutes and 35 seconds which could have been sufficient time to clean the spill or close off the area of the spillage. Plaintiff further argues that Defendant has failed to establish that it lacked actual notice of the spill. Plaintiff claims that Defendant must have expert opinion to support an assertion that Plaintiff was not injured. Defendant counters that it is not alleging that Plaintiff was not hurt, it is alleging that her testimony is contradicted by video evidence and that it should be discounted due to lack of credibility.
A party moving for summary judgment "must make a prima facie showing of entitlement to judgment as a matter oflaw, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923 [1986]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316 [ 1985]). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [ 1980]). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (see O'Brien v Port Auth. of N.Y.& N.J., 29 N.Y.3d 27, 52 N.Y.S.3d 68 [2017]). The opposing party must "produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Stonehill Capital Mgmt., LLC v. Bank of the West., 28 N.Y.3d 439, 44845 N.Y.S.3d 864 [2016)(quoting Alvarez v Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923).
In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 [2011)). On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue (S.J. Capelin Associates v Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478 [1974]). However, the court must also determine whether the factual issues presented are genuine or unsubstantiated (Prunty v Keltie 's Bum Steer, 163 A.D.2d 595, 559 N.Y.S.2d 354 [2d Dept. 1990]). If the issue claimed to exist is not genuine but is feigned and there is nothing to be tried, then summary judgment should be granted (Prunty v Keltie 's Bum Steer, supra, citing Glick & Dolleck v Tri-Pac Export Corp., 22 N.Y.2d 439, 293 N.Y.S.2d 93[1968]; Columbus Trust Co. v Campolo, 110 A.D.2d 616, 487 N.Y.S.2d 105 [2d Dept 1985), affd, 66 N.Y.2d 701, 496 N.Y.S.2d 425; Barclays Bank of New York, N.A. v. Sokol, 128 A.D.2d 492, 512 N.Y.S.2d 419, 420 [2d Dept. 1987]).
In order to state a negligence cause of action, a party must assert the existence of a duty, along with a breach of that duty, which proximately caused injury and resulted in damages (Muallem v. City of New York, 82 A.D.2d 420, 441 N.Y.S.2d 834 [2d Dept. 1981], affd, 56 N.Y.2d 866 [1982]; Pulka v. Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393 [1976]; Miglino v. Bally Total Fitness of Greater New York, Inc., 92 A.D.3d 148, 937 N.Y.S.2d 63 [2d Dept. 2011], affd but criticized, 20 N.Y.3d 342 [2013]). An owner or possessor of land has a common law duty to maintain his or her property in a reasonably safe condition in view of all the circumstances, including the frequency of use by others, the likelihood of injury to others, the seriousness of the potential injury, and the burden of avoiding the risk (Peralta v Henriquez, 100 N.Y.2d 139, 144, 760 N.Y.S.2d 741 [2003]; Alnashmi v. Certified Analytical Grp., Inc., 89 A.D.3d 10, 14, 929 N.Y.S.2d 620, 624 [2d Dept. 2011]; Gronski v. Cty. of Monroe, 18 N.Y.3d 374, 940 N.Y.S.2d 518[2011]; Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564[1976]; Alonzo v. City of New York, 188 A.D.3d 1123, 134 N.Y.S.3d 429 [2d Dept. 2020]). In order to impose liability upon a defendant based upon a dangerous condition, "there must be evidence that the dangerous condition existed, and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time" (Grullon v. W. 48th St. Redevelopment Corp., 75 A.D.3d 621, 622-23, 905 N.Y.S.2d 278, 279-80 [2d Dept. 2010]; see also Melo v. LaGuardia Fitness Ctr. Corp., 72 A.D.3d 761, 898 N.Y.S.2d 625 [2d Dept. 2010]; Barrett v. New York City Transit Auth., 176 A.D.3d 909, 111 N.Y.S.3d 615[2d Dept. 2019], leave to appeal denied, 35 N.Y.3d 914 [2020]; Alonzo, supra) and that the condition caused Plaintiffs accident, resulting in injury (Leary v. N. Shore Univ. Hosp., 2 18 A.D.2d 686, 630 N.Y.S.2d 554 [2dDept. 1995]; Skay v. Pub. Libr. of Rockville Ctr., 238 A.D.2d 397, 657 N.Y.S.2d 553 [2dDept. 1997]; Grant v. L&J G Stickley, Inc., 20 A.D.3d 506, 799 N.Y.S.2d 123 [2d Dept. 2005]; Hartman v. Mountain Valley Brew Pub, Inc., 301 A.D.2d 570, 754 N.Y.S.2d 31 [2d Dept. 2003]; Thompson v. Commack Multiplex Cinemas, 83 A.D.3d 929, 921 N.Y.S.2d 304 [2d Dept. 2011]; Bomhino-Munroe v. Church of St. Bernard, 163 A.D.3d 616, 80 N.Y.S.3d 429 [2d Dept. 2018]).
Constructive notice of a hazardous condition on property may be imputed when "...the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it" (Wittman v. Nespola, 190 A.D.3d 1012, 1012 13, 136 N.Y.S.3d 885, 886 [2d Dept. 2021]; Gordon v. Am. Museum of Nat. Hist., 67 N.Y.2d 836, 501 N.Y.S.2d 646 [1986]; Melo, supra; Abrams v. Berelson, 94 A.D.3d 782, 942 N.Y.S.2d 132 [2d Dept. 2012]; Kyte v. Mid Hudson Wendico, Inc., 131 A.D.3d 452, 15 N.Y.S.3d 147 [2d Dept. 2015]; Seung Chul Na v. JP Morgan Chase & Co., 123 A.D.3d 903, 1 N.Y.S.3d 125 [2d Dept. 2014](no constructive notice where rain water had been mopped up 30 minutes prior and other customers entered without incident); Radosta v. Schechter, 171 A.D.3d 1112, 97 N.Y.S.3d 664 [2d Dept. 2019](no constructive notice where rainwater had been dry mopped 15-25 minutes prior); Yacovelli v. Pathmark Stores, Inc., 67 A.D.3d 1002, 888 N.Y.S.2d 750 [2d Dept. 2009](no constructive notice where inspection was 3 minutes prior and steady stream of pedestrian traffic went though area)).
A defendant seeking summary judgment in a slip or trip and fall case (or a slip only case, as alleged here) must make a prima facie showing that it did not create the hazardous condition at issue and that it "did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it" (Barron v. E. Athletic, Inc., 150 A.D.3d 654, 655, 53 N.Y.S.3d 689, 690 [2d Dept. 2017]; Skerrett v. LIC Site B2 Owner, LLC, 199 A.D.3d 956, 158 N.Y.S.3d 186 [2d Dept. 2021]; Deutsch v. Green Hills (USA), LLC, No. 2019-07166, 2022 WL 468384, at *1 [2d Dept. 2022]). Generally, to meet its burden with respect to lack of constructive notice, a defendant must offer evidence as to when the area was last cleaned or inspected, relative to the time when the plaintiff fell (Skerrett v. LIC Site B2 Owner, LLC, supra; Williams v. Island Trees Union Free Sclu Dist., 177 A.D.3d 936, 114 N.Y.S.3d 118 [2d Dept. 2019]; Marazita v. City of New York, No. 16846/14, 2022 WL 468409, at *2 [2d Dept. 2022]). Alternately, a defendant may establish its entitlement to judgment as a matter of law by demonstrating that the plaintiff cannot identify the cause of his or her fall because in such case proximate cause is based upon speculation (Deutsch v. Green Hills (USA), LLC, supra; Marazita v. City of New York, supra). However, here it is uncontroverted that the cause of plaintiffs slipping was a cooking oil spill caused by another customer and that fewer than nine minutes passed between the unidentified customer having spilled the oil and the plaintiff having slipped on it.
As discussed above, the court must consider causation, injury and notice. There is no dispute that the cause of Plaintiffs slipping was the oil on the floor (although the character and extent of the slipping incident is disputed) and Defendant has failed to establish that there was no injury, Notice is the critical element at this juncture. It is the finding of this court that insufficient time passed between the spill of the oil and Plaintiffs encounter with it to permit Defendant to discover the spill and remedy it. Defendant has met its burden as to lack of constructive notice. However, nowhere in Defendant's moving papers is any evidence that Defendant did not have actual notice of the slippery condition. Therefore, as Defendant has failed to make a prima facie case that it lacked actual notice, Defendant's summary judgment motion is denied.
The parties are directed to enter into a stipulation scheduling remaining discovery or, if discovery is complete, to execute a certification conference stipulation and submit it to the court via NYSCEF in advance of the next scheduled conference date.