Opinion
Index No. 58567/2019 Motion Sequence No. 1
07-12-2021
DEANNA SCHWAM, Plaintiff(s), v. HOMEGOODS, INC., a TJX Company, THE TJX COMPANIES, INC., and MARSHALLS OF MA, INC., Defendants.
Unpublished Opinion
DECISION & ORDER
HON. JOAN B. LEFKOWITZ, J.S.C.
The following papers (e-filed document nos. 25-43; 46-47) were read on the motion by the defendants for an order granting summary judgment dismissing the complaint.
Notice of Motion-Affirmation-Exhibits (A-I) Affirmation in Opposition-Affidavit-Memorandum of Law-Exhibits (A-E) Reply Affirmation (and corrected)
Upon reading the foregoing papers, it is
ORDERED the motion is denied; and it is further
ORDERED the matter is hereby referred to the Settlement Conference Part for a settlement conference. Due to the COVID-19 public health emergency, the Clerk of the Settlement Conference Part shall notify the parties of the date, time, and method of the settlement conference.
Plaintiff sues to recover damages for injuries allegedly sustained in a trip-and-fall accident that occurred on April 16, 2019, at a HomeGoods store located in Greenburgh, New York, which is owned and operated by the defendants. The accident allegedly occurred when the plaintiff, a customer in defendants' store, tripped and fell over a rolled-up rug located on the floor near the front left entrance to the store. At deposition, defendants' assistant merchandise manager, Jacqueline Ortiz (Ms. Ortiz), testified that the subject rug had been placed in the location where the plaintiff fell by another customer who was returning the subject rug (see Ortiz deposition tr at 32). Ms. Ortiz further testified that it was customary for customers returning larger pieces of merchandise, such as a rug, to place the merchandise on the left side of the front entrance to the store "where they see the space" (id. at 20). Plaintiff testified at deposition that she did not observe the rug prior to the fall.
Following the completion of discovery, defendants move for an order granting summary judgment dismissing the complaint upon the grounds that the rolled-up rug over which plaintiff tripped and fell was an open and obvious condition and not inherently dangerous. Plaintiff opposes the motion. For the reasons that follow, the motion is denied.
On a motion for summary judgment the court's function is to determine whether triable issues of fact exist or whether judgment can be granted to a party on the proof submitted as a matter of law (see CPLR 3212 [b]; Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]). In determining the motion, the court must view the evidence in a light most favorable to the nonmovant and is obliged to draw all reasonable inferences in the nonmovant's favor (see Negri v Stop & Shop, 65 N.Y.2d 625, 626 [1985]; Stukas v Streiter, 83 A.D.3d 18, 22 [2d Dept 2011]). Such a motion may be granted only if the movant tenders sufficient evidence in admissible form demonstrating, prima facie, the absence of triable issues of material fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). Failure to make a prima facie showing requires denial of the motion regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]).
Here, defendants failed to establish their prima facie entitlement to judgment as a matter of law. First, a defendant owner or entity who is responsible for maintaining a premises who moves for summary judgment in a trip-and-fall case involving the premises has the initial burden of demonstrating, prima facie, that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Campbell v New York City Tr. Auth, 109 A.D.3d 455, 456 [2d Dept 2013]; Pryzywalny v New York City Tr. Auth, 69 A.D.3d 598, 598 [2d Dept 2010]; Arzola v Boston Props. Ltd. Partnership, 63 A.D.3d 655, 656 [2d Dept 2009]). To sustain this burden, "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 fell" (Birnbaum v New York Racing Assn., Inc., 57 A.D.3d 598, 598-599 [2d Dept 2008]). "Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice" (Rogers v Bloomingdale's, Inc., 117 A.D.3d 933, 933-934 [2d Dept 2014] [internal quotation marks omitted]). Here, defendants failed to proffer any competent evidence demonstrating when the subject area was last cleaned or inspected relative to the time when plaintiff fell (see Herman v Lifeplex, LLC, 106 A.D.3d 1050, 1052 [2d Dept 2013]). At deposition, the defendants' employee, Marco Estrada Salinas, testified that he did not recall the last time he was in the area where the plaintiff fell (see Salinas deposition tr at 32). Similarly, Ms. Ortiz testified at deposition that she did not recall the last time she was in the area where the plaintiff fell and did not know how long the rug had been in the location where the plaintiff fell prior to the incident (see Ortiz deposition tr at 32-34). Such testimony, without more, is insufficient to sustain defendants' prima facie burden.
Second, "[w]hile a landowner has a duty to maintain its premises in a reasonably safe manner, it does not have a duty to protect against an open and obvious condition, which, as a matter of law, is not inherently dangerous" (Mahoney v AMC Entertainment, Inc., 103 A.D.3d 855, 856 [2d Dept 2013] [internal citations omitted]). However, "[p]roof that a dangerous condition is open and obvious does not preclude a finding of liability against an owner for failure to maintain property in a safe condition" (Holmes v Macy's Retail Holdings, Inc., 184 A.D.3d 811, 811 [2d Dept 2020]; Villano v Strathmore Terrace Homeowners Assn., Inc., 76 A.D.3d 1061, 1062 [2d Dept 2010]).
"The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case" (Holmes, 184 A.D.3d at 811 [internal quotation marks, brackets, and citations omitted]; see Russo v Home Goods, Inc., 119 A.D.3d 924, 925-926 [2d Dept 2014]). Thus, "[t]he issue of whether a condition is open and obvious and not inherently dangerous is case-specific, and usually a question of fact for a jury" (Clayton v Marcy Supermarket & Deli Corp., 191 A.D.3d 842, 843 [2d Dept 2021]; see Lee v Acevedo, 152 A.D.3d 577, 578 [2d Dept 2017]). "A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted" (Cassone v State of New York, 85 A.D.3d 837, 838-839 [2d Dept 2011]). Furthermore, the issue of whether a defective condition is open and obvious relates to the question of an injured plaintiffs comparative negligence in failing to see what should have been seen, and "does not negate a landowner's duty to maintain its premises in a reasonably safe condition[]" (Ruiz v Hart Elm Corp., 44 A.D.3d 842, 843 [2d Dept 2007]; see Cooper v American Carpet & Restoration Servs., Inc., 69 A.D.3d 552, 553 [2d Dept 2010];Salomon v Prainito, 52 A.D.3d 803, 805 [2d Dept 2008]; Cupo v Karfunkel, 1 A.D.3d 48, 52 [2d Dept 2003]).
Here, viewing the evidence submitted by the defendants in support of their motion, which includes the plaintiffs deposition testimony and video surveillance of the incident, in a light most favorable to the plaintiff, the nonmoving party, defendants failed to establish, prima facie, that the rolled-up rug over which plaintiff tripped and fell was an open and obvious condition that was not inherently dangerous as a matter of law (see Clayton, 191 A.D.3d at 843; Brett v AJ 1086 Assoc, LLC, 189A.D.3d 1153, 1154-1155 [2d Dept 2020]; Holmes, 184 A.D.3d at 811-812; Russo, 119 A.D.3d at 926). The subject rug was located low to the floor near the store's front left entrance directly in front of merchandise (pottery plants) propped up on a display table in an area in which customers gathered and walked. Further, the plaintiff testified at deposition that she did not see the subject rug prior to the alleged fall and that immediately prior to the fall, she was looking in the right direction and straight towards the candy aisle, which is where she intended to go, and as she proceeded that way, her left foot caught the rug causing her to fall (see Plaintiff deposition tr at 19-22). "Given the totality of these circumstances, the defendants have failed to eliminate triable issues of fact as to whether they created an unsafe condition for the plaintiff (Russo, 119 A.D.3d at 926, citing Gradwohl v Stop & Shop Supermarket Co., LLC, 70 A.D.3d 634 [2d Dept 2010]).
Insofar as defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law, the court need not consider the sufficiency of the plaintiffs opposing papers (see Alvarez, 68 N.Y.2d at 324). Accordingly, defendants' motion is denied.