Opinion
25863/2009.
Decided March 25, 2011.
Patrick Daniel Gatti, Esq., Segal Lax, New York, NY, Attorney's for Plaintiff.
Michael J. Lenoff, Esq., Three Nickels, LLC, New York, NY, Attorney for Defendant.
By notice of motion filed on October 9, 2010, under motion sequence number three, defendant Three Nickles LLC, (hereinafter Nickles) seeks an order granting summary judgment in its favor on the issue of liability and dismissing plaintiff Randolph Ward's (hereinafter Ward) complaint pursuant to CPLR § 3212. Ward opposes the motion.
BACKGROUND
On October 14, 2009, Ward commenced the instant action by filing a summons and complaint with the Kings County Clerk's office. Issue was joined by Nickles' answer signed on November 18, 2009. On August 10, 2010, a note of issue was filed. Ward's complaint and bill of particulars allege that on April 22, 2009, at 9:30 a.m., he slipped, fell an injured himself on a staircase between the 4th and 5th floor at Nickles premises located at 555 Ocean Avenue, Brooklyn, New York (the subject premise) due to the presence of a wet and dangerous condition caused by Nickles' negligence.
MOTION PAPERS
Nickels' motion papers consist of an affirmation of its counsel with seven annexed exhibits labeled A through G. Exhibit A is the instant complaint. Exhibit B is Nickels' answer and combined discovery demands. Exhibit C is plaintiff's verified bill of particulars, dated December 31, 2009. Exhibit D is described as a Kings County ambulance call report. Exhibit E is a certified transcript of Ward's deposition conducted on June 7, 2010. Exhibit F is a certified transcript of the deposition of Daisy Ward, plaintiff's daughter, conducted on August 16, 2010. Exhibit G is an affidavit of James Sealey, the superintendent of the subject premise, signed on September 30, 2010.
Ward has opposed the motion with an affirmation of counsel and four annexed exhibits labeled A through D. Exhibit A is Ward's affidavit signed on November 19, 2010. Exhibit B is a disc of video recording provided to Ward by the superintendent of the subject premise. The disc contains video images of Ward's accident and the one and a half hour time period preceding it. Exhibit C is an affidavit of plaintiff's grandson signed on November 23, 2010. Exhibit D is a certified transcript of the deposition of Daniel Reifer, the owner of the subject premise, conducted on August 5, 2010.
Nickles has replied to Ward's opposition papers with an affirmation of its counsel containing three annexed exhibits labeled A through C. Exhibit A and B are Ward's responses to Nickels' discovery demands. Exhibit C is a preliminary conference order in the instant action dated February 17, 2010.
Ward has responded to Nickles' reply with an affirmation of his counsel.
LAW APPLICATION
A motion for summary judgment may be granted only when the moving party makes a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact ( Alvarez v. Prospect Hosp., 68 NY2d 320). "Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" ( Celardo v. Bell, 222 AD2d 547 [2nd Dept., 1995]). Once the movant has met this burden, the burden then shifts to the party opposing the motion to demonstrate via admissible evidence the existence of a factual issue requiring a trial of the action ( Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, 49 NY2d 557, 560).
The elements of a negligence claim are the existence of a duty, a breach of that duty, and damages proximately caused by that breach of duty ( Lapides v. State, 57 AD3d 83 [2nd Dept., 2008]). "To prove a prima facie case of negligence in a slip and fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition" ( Scott v. Beverly Hills Furniture , 30 AD3d 577, 578 [2nd Dept., 2006], citing Goldman v. Walbaum, 248 AD2d 436 [2nd Dept., 1999]).
A landlord has a duty to maintain its premises in a reasonably safe condition ( Van Dina v. St. Francis Hosp., Rosyln, New York, 45 AD3d 673,674 [2nd Dept., 2007]). "A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it"( Lee v. Port Chester Costco Wholesale, ___ AD3d ___, 2011 NY Slip Op 01804 [2nd Dept., 2011]).
A defendant has constructive notice of a defect when the defect is visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected ( Larsen v. Congregation B'Nai Jeshurum of Staten Island , 29 AD3d 643 [2nd Dept., 2006]).
To meet its burden on the issue of lack of constructive notice, on motion for summary judgment in a slip-and-fall case, the defendant must offer some evidence as to when accident site was last cleaned or inspected prior to plaintiff's fall ( Mei Xiao Guo v. Quong Big Realty Corp.,81 AD3d 610 [2nd Dept., 2011]).
In support of its motion Nickles contends that Ward's accident occurred on April 22, 2009 at 8:45 p.m., and not at 9:30 a.m., as alleged in plaintiff's bill of particulars. Nickels relies on a document described as a Kings County ambulance call report to support the claim that the accident occurred in the evening. The report, however, is neither affirmed nor certified, nor otherwise admissible. It is therefore disregarded. Nickles then refers to Ward's deposition testimony to show that Ward did not know how long the wet condition that he allegedly slipped on was present on the staircase. Nickles, however, cannot satisfy its initial burden as the movants for summary judgment merely by pointing out gaps in the plaintiff's case ( Plotits v. Houaphing D. Chaou, LLC, 81 AD3d 620 [2nd Dept., 2011]). Nickles then refers to the deposition testimony of Daisy Ward, plaintiff's daughter, to show that when she found him injured, he could not tell her what caused him to fall. In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party ( Stukas v. Streiter ___ AD3d ___, 2011 NY Slip Op 01832 [2nd Dept., 2011]). "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" ( Id). Viewing Daisy Ward's testimony in the light most favorable to the plaintiff, her testimony shows that Ward was injured and in pain at the time his daughter found him bleeding on the stairs. It is not much of a stretch to assume he may have had some difficulty expressing himself at that time. Furthermore, the fact that the testimony of his daughter may cast some doubt on Ward's testimony presents a question of credibility for the trier of fact.
Finally, Nickles refers to the affidavit of James Sealey, the superintendent of the subject premise. Sealey's states in his affidavit that the subject premise had two porters at the time of Ward's accident. He describe the porters' cleaning schedule and procedures. He does not state, however, whether the staircase in question was actually inspected or cleaned on or before the day of Ward 's accident. Nor does he or anyone else state what they observed the condition of the stairs to be at any time prior to plaintiff's accident.
Nor did Nickels submit evidence showing that it did not have actual notice of the alleged wet condition on the day of the accident ( McPhaul v. Mutual of Ameria Life Ins. Co., 81 AD3d 609, 610 [2nd Dept., 2011]). Nickles did not submit evidence showing that it had never received any complaints about the alleged oil or water condition.
Finally, Nickles did not establish as a matter of law that it did not have constructive notice of the condition, as it failed to proffer any evidence as to when the subject area was last cleaned or inspected before the plaintiff's fall, or that the condition existed for an insufficient length of time for the owner to discover and remedy it ( Id).Nickels has therefore failed to meet its burden to show entitlement to summary judgment in its favor on liability ( Mei Xiao Guo v. Quong Big Realty Corp.,81 AD3d 610 [2nd Dept., 2011]).
In light of this determination, the court need not review the sufficiency of the plaintiff's opposition papers ( Plotits v. Houaphing D. Chaou, LLC, 81 AD3d 620 [2nd Dept., 2011]).
Nickles motion for summary judgment is denied.
The foregoing constitutes the decision, order, and judgment of the court.