Opinion
102542/07.
October 3, 2008.
MEMORANDUM DECISION
Defendant 27 Park Place Associates. Inc. ("defendant") moves for an order pursuant to CPLR 3212 granting summary judgment and dismissing the plaintiff's complaint and/or in the alternative, for an order pursuant to CPLR 3211(a)(7) dismissing the complaint for failure to state a cause of action.
This action arises out of personal injuries sustained by plaintiff Jeanine Straughn ("plaintiff") on May 8, 2006 as a result of a slip and fall incident that took place on the sidewalk in front of Peter's Candy Grocery store located at 103 Church Street, New York, New York (the "accident site").
Plaintiff's Deposition
Plaintiff was walking back to work, and she just lost her footing and fell. Prior to falling, plaintiff did not notice anything on the ground, holes or debris, or anything (p. 12). Plaintiff does not know the address of the building where she fell. But, the location is on Church Street between Park Place and Vesey Streets. After plaintiff fell, she did not observe what caused her to fall (p. 1 8). Apparently after she fell, plaintiff did not notice anything on the ground, any debris or slippery substance (p. 19). Plaintiff identified the accident site in a photo as the location where she fell; directly in front of the Candy Store (p. 51).
Defendant's Contentions
Plaintiff admitted in her deposition that she does not know exactly where she fell. Further, in her deposition, she states that she does not know what caused her to fall. Additionally, plaintiff fails to provide any facts which would establish the notice requirements necessary proving a slip and fall case.
Plaintiff's Opposition
Defendant stated that plaintiff did not know the address of the building where she fell; however, she knew that she fell in front of the candy store on Church Street and properly identified it in pictures at her deposition. And, plaintiff's testimony establishes that she did not notice what she fell on prior to her fall.
Defendant's Reply
Plaintiff's opposition fails to mention the cause of the accident or identify a type of defect that caused the alleged accident. As such, it is impossible to tell if plaintiff slipped, tripped, stumbled or was pushed. Also, plaintiff could not set forth exactly where she fell.
Analysis CPLR 3212: Summary Judgment
It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit" (CPLR § 3212[b]), sufficient to warrant the court as a matter of law to direct judgment in his or her favor ( Bush v St. Claire's Hosp., 82 NY2d 738, 739; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Wright v National Amusements, Inc., 2003 N.Y. Slip Op. 51390(U) [Sup Ct New York County, Oct. 21, 2003]). This standard requires that the proponent of a motion for summary judgment make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact ( Winegrad v New York Univ. Med. Cir., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Silverman v Perlbinder, 307 AD2d 230, 762 NYS2d 386 [1st Dept 2003]; Thomas v Holzberg, 300 AD2d 10, 11, 751 NYS2d 433, 434 [1st Dept 2002] [defendant not entitled to summary judgment where he failed to produce admissible evidence demonstrating that no triable issue of fact exists as to whether plaintiff would have been successful in the underlying negligence action]). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions" (CPLR § 3212[b]). A party can prove a prima facie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence ( Zuckerman, supra; Prudential Securities Inc. v Rovello, 262 AD2d 172 [1st Dept 1999]).
Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (CPLR § 3212[b]). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so ( Vermette v Kenworth Truck Co., 68 NY2d 714, 717; Zuckerman v City of New York, supra, 49 NY2d at 560, 562; Forrest v Jewish Guild for the Blind, 309 AD2d 546, 765 NYS2d 326 [1st Dept 2003]). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist ( Zuckerman, supra at 562). Opponent "must assemble and lay bare [its] affirmative proof to demonstrate that genuine issues of fact exist" and "the issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief" ( Kornfeld v NRX Technologies, Inc., 93 AD2d 772 [1st Dept 1983], affd, 62 NY2d 686).
CPLR 3211 [a] [7]: Dismiss for Failure to State a Cause of Action
In determining a motion to dismiss, the Court's role is ordinarily limited to determining whether the complaint states a cause of action ( Frank v Daimler Chrysler Corp., 292 AD2d 118, 741 NYS2d 9 [1st Dept 2002]). The standard on a motion to dismiss a pleading for failure to state a cause of action is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained ( see Stendig, Inc. v Thom Rock Realty Co., 163 AD2d 46 [1st Dept 1990]; Leviton Manufacturing Co., Inc. v Blumberg, 242 AD2d 205, 660 NYS2d 726 [1st Dept 1997] [on a motion for dismissal for failure to state a cause of action, the court must accept factual allegations as true]). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed ( see, CPLR § 3026). On a motion to dismiss made pursuant to CPLR § 3211, the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory" ( Nonnon v City of New York, 9 NY3d 825 [2007]; Leon v Martinez, 84 NY2d 83, 87-88, 614 NYS2d 972, 638 NE2d 511 ). However, in those circumstances where the bare legal conclusions and factual allegations are "flatly contradicted by documentary evidence," they are not presumed to be true or accorded every favorable inference ( Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81, 692 NYS2d 304 [1st Dept 1999], affd 94 NY2d 659, 709 NYS2d 861, 731 NE2d 577; Kliebert v McKoan, 228 AD2d 232, 643 NYS2d 114 [1st Dept], l v denied 89 NY2d 802, 653 NYS2d 279, 675 NE2d 1232, and the criterion becomes "whether the proponent of the pleading has a cause of action, not whether he has stated one" ( Guggenheimer v Ginzburg, 43 NY2d 268, 275, 401 NYS2d 182, 372 NE2d 17; see also Leon v Martinez, 84 NY2d 83, 88, 614 NYS2d 972, 638 NE2d 511; Ark Bryant Park Corp. v Bryant Park Restoration Corp., 285 AD2d 143, 150, 730 NYS2d 48 [1st Dept 2001]; WFB Telecom., Inc. v NYNEX Corp., 188 AD2d 257, 259, 590 NYS2d 460 [1st Dept], lv denied 81 NY2d 709, 599 NYS2d 804, 616 NE2d 159 [CPLR 3211 motion granted where defendant submitted letter from plaintiff's counsel which flatly contradicted plaintiff's current allegations of prima facie tort]).
On a motion to dismiss for failure to state a cause of action pursuant to CPLR § 3211 [a] [7] where the parties have submitted evidentiary material, including affidavits, the pertinent issue is whether claimant has a cause of action, not whether one has been stated in the complaint ( see Guggenheimer v. Ginzburg, 43 NY2d 268, 275; R.H. Sanbar Projects, Inc. v Gruzen Partnership, 148 AD2d 316, 538 NYS.2d 532 [1st Dept 1989]). Affidavits submitted by a plaintiff may be considered for the limited purpose of remedying defects in the complaint ( Rovello v Orofino Realty Co., 40 NY2d 633, 635-36; Arrington v New York Times Co., 55 NY2d 433, 442). While affidavits may be considered, if the motion is not converted to a 3212 motion for summary judgment, they are generally intended to remedy pleading defects and not to offer evidentiary support for properly pleaded claims" ( Nonnon v City of New York, 9 NY3d 825 [2007]).
On a motion to dismiss directed at the sufficiency of the complaint, the plaintiff is afforded the benefit of a liberal construction of the pleadings: "The scope of a court's inquiry on a motion to dismiss under CPLR 3211 is narrowly circumscribed" ( 1199 Housing Corp. v International Fidelity Ins. Co., NYLJ January 18, 2005, p. 26 col.4, citing P.T. Bank Central Asia v Chinese Am. Bank, i 301 AD2d 373, 375), the object being "to determine if, assuming the truth of the facts alleged, the complaint states the elements of a legally cognizable cause of action" ( id. at 376; see Rovello v Orofino Realty Co., 40 NY2d 633, 634).
Notice: Actual and Constructive
It is well settled that in order for a party to be held liable for injuries resulting from a defective condition, the plaintiff must establish that the defendant had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected" ( Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 646, 649 NYS2d 115 [citations omitted]; see Lupi v Home Creators, 265 AD2d 653, 696 NYS2d 291, l v. denied 94 NY2d 758, 705 NYS2d 5).
To constitute constructive notice, a dangerous condition must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy the condition ( see Gordon v. American Museum of Natural History, 67 NY2d 836, supra; see also Segretti, 256 AD2d 234, supra; Lemonda v. Sutton, 268 AD2d 383, 702 NYS2d 275 [1st Dept. 2000]; Guttierez v. Lenox Hill Neighborhood House, Inc., 4 AD3d 138, 771 NYS2d 513 [1st Dept. 2004]; Budd v. Gotham House Owners Corp., 17 AD3d 122, 793 NYS2d 340 [1st Dept. 2005]). A defendant may also have constructive notice of a dangerous condition if the plaintiff presents evidence that the condition was ongoing and recurring in the area of the accident, and such condition was left unaddressed ( see Gordon v. American Museum of Natural History, 67 NY2d 836, supra; see also O 'Connor-Miele v. Barhite Holzinger, Inc., 234 AD2d 106, 650 NYS2d 717 [1st Dept. 1996]; Colt, 209 AD2d 294, supra). By contrast, a mere general awareness of the presence of some dangerous condition is legally insufficient to establish constructive notice ( see Piacquadio v. Recine Realty Corp., 84 NY2d 967, 622 NYS2d 493; see also Gordon v. American Museum of Natural History, 67 NY2d 836, supra; Segretti, 256 AD2d 234, supra).
Once a defendant has actual or constructive notice of a dangerous condition, the defendant has a reasonable time to undertake remedial actions that are reasonable and appropriate under all of the circumstances ( see Stasiak v Sears, Roebuck Co., 281 AD2d 533, 722 NYS2d 251; LoSquadro v Roman Catholic Archdiocese of Brooklyn, 253 AD2d 856, 678 NYS2d 347).
There is no evidence that defendant had actual or constructive notice of a defective condition in time to discover and remedy it prior to the accident, nor any evidence that it created the condition ( Martinez v Morris Ave. Equities, 30 A.D.3d 264, 817 N.Y.S.2d 47).
Based upon the four corners of the complaint liberally construed in favor of the plaintiff, the pleading fails to state a legally cognizable cause of action ( see Leon v Martinez, 84 N.Y.2d at 87-88, 614 N.Y.S.2d 972 (1994); Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182 (1977); Salles v. Chase Manhattan Bank, 300 A.D.2d 226, 228, 754 N.Y.S.2d 236 (1st Dept 2002).
That plaintiff could not identify what caused her to fall, adds to the inability of defendant address the alleged condition.
Conclusion
Based on the foregoing, it is hereby
ORDERED and ADJUDGED that the motion of defendant 27 Park Place Associates. Inc. for an order pursuant to CPLR 3212 granting summary judgment and dismissing the plaintiff's complaint and/or in the alternative, for an order pursuant to CPLR 3211(a)(7) dismissing the complaint for failure to state a cause of action, is granted, the Complaint is dismissed; and it is further
ORDERED that counsel for defendant shall serve a copy of this order with notice of entry within twenty days of entry on counsel for plaintiff. Dated: October 3, 2008