Opinion
16626/2005.
Decided on September 24, 2007.
ADA John Holmes and ADA Joseph Di Benedetto, Office of the Kings County District Attorney, Renaissance Plaza, Brooklyn, NY, The prosecutors are.
Stephen R. Mahler, Esq., Mahler Harris, P.C., Kew Gardens, NY, Defense counsel is.
Defendant TASTY POULTRY LLC D/B/A NEW YORK POULTRY CO. (Tasty) moves seeking an Order granting it summary judgment over plaintiffs, the co-defendant and third-party plaintiff TURYALI FAST FOOD, INC. D/B/A KENNEDY FRIED CHICKEN (Turyali). Tasty alleges that it did not cause nor create the condition which allegedly caused plaintiff SANDINO MCKNIGHT's (McKnight) accident, nor did it have notice of the same. Plaintiffs oppose Tasty's motion asserting that questions of fact preclude summary judgment. Turyali cross-moves seeking relief identical to the relief sought by Tasty and for the very same reasons. Plaintiffs oppose Turyali's cross-motion asserting that questions of fact preclude summary judgment.
For the reasons that follow hereinafter, Tasty's motion is hereby denied and Turyali's cross-motion is granted.
The instant action is for alleged personal injuries premised upon the negligent maintenance of a premises. The complaint alleges that on November 8, 2004, McKnight was injured while within premises owned and operated by Turyali and located at 381 Dyre Avenue, Bronx, NY. It is alleged that McKnight tripped and fell within the aforementioned premises and that said fall was due to Turyali's negligence. The amended complaint alleges that defendant Tasty sold food to Turyali and made deliveries thereto. It is further alleged that McKnight's accident was also due to Tasty's negligence. Plaintiff KARLENE ALLEN (Allen), McKnight's mother, pleads a cause of action for loss services. Tasty asserts cross-claims against Turyali for contribution and indemnification and Turyali's third-party complaint against Tasty similarly pleads causes of action sounding in contribution and indemnification.
In support of the instant motion, Tasty submits six copies of photographs. The same purportedly depict the interior of the premises herein and are neither sworn, certified, nor is there any foundation for the same's admisson.
Tasty submits a copy of McKnight's deposition transcript, wherein he testified, in pertinent part, as follows. On November 8, 2004, at approximately 4:45PM, McKnight went to the Kennedy Fried Chicken store located at Dyre Avenue. McKnight was there to purchase food and to eat. He entered the store and waited on line to place his order. The store was small and rectangular. The store had a counter area to place orders and pick up food. The floor in the store consisted of brown tile. The store had two tables for eating. While on line he noticed that his friend was seated in one of two tables located therein. After waiting on line for five minutes, McKnight reached the counter, placed his order, got his food and sat down with his friend and another individual. Prior to sitting down, McKinght observed that the floor by the table where he was seated was clean. While seated, McKnight faced the interior of the store. Sometime thereafter, McKinght observed two men enter the store to make a delivery. The men delivered several boxes of chicken on a hand truck over the course of ten minutes. Said boxes were wet and covered with melted frost. The men made several trips into the store, each time with about five boxes. The men entered the store, walked through the store, and into the back of the store behind the counter. Twenty five minutes after McKinght sat down, Mcknight's friends left the store. Thereafter and about five minutes after the men Mcknight observed finished the delivery of chicken into the store, McKnight got up, took no steps and slipped and fell. Prior to getting up from his seat and prior to falling, McKinght had not looked at the ground. Once on the ground, McKnight observed a trail of water containing some blood leading from the front of the store to the rear of the store. The trail was about two feet wide. While McKnight did not see any water actually fall on the floor, he believes that the water was a result of the delivery he observed prior to his fall. Prior to his fall McKnight had not traversed the area where he had his accident nor did he notice the water he alleges caused his fall. Prior to his fall McKnight never observed any of the store's employees in the customer area of the store, they remained behind the counter the entire time he was within the store. McKnight was in the store for about a half hour prior to his accident. Prior to the accident herein, McKinight made no complaints regarding the condition of the floor.
Tasty submits a copy of John Hadi's (Hadi) deposition transcript, wherein he testified, in pertinent part as follows. In 2004, he was employed by Turyali at the premises herein. His duties and responsibilities consisted of cooking and cleaning. He was not present on the date that Mcknight allegedly sustained his injury. It was Turyali's custom and practice to clean the store, including the floor once daily prior to closing. If during the course of the day someone complained about the floors, or if someone noticed a spill or garbage on the floor, an employee would clean the same. In 2004, Tasty would supply chicken to Turiyali. Tasty would make deliveries twice a week and would deliver the chicken in boxes. The chicken was wrapped in plastic within the boxes and Hadi never noticed that the boxes were wet or leaking.
Tasty submits a copy of Abdul Nassary's (Nassary) deposition transcript, wherein he testified, in pertinent part, as follows. Nassary is a manager with Tasty. Back on November 8, 2004, Tasty delivered chicken to the Kennedy Fried Chicken store on Dyre Avenue. The driver who delivered the chicken was not employed by Tasty at the time of Nassary's deposition. Tasty purchased chicken from another company and purchased the chicken it delivered to the premises herein on the morning of November 8, 2004. The chicken was delivered in boxes packed in ice. At times the boxes would be wet and at times drops of water would spill from said boxes. Prior to delivery the chicken was stored in refrigerated units within Tasty's headquarters and thereafter transported to a location via a refrigerated truck. All refrigerators were working on the date herein. Tasty's driver would deliver the chicken to a particular store and put the same in the store's freezer. Tasty's drivers were instructed that in the event of any spills from said boxes, they should clean up the same.
In opposition to Tasty's motion, plaintiffs' submit copies of McKnight and Nassary's deposition transcripts, already discussed above. Plaintiffs also submit a copy of an unsworn, uncertified invoice, for which no foundation is laid.
In support of its cross-motion, Turyali submits copies of the McKnight, Hadi, and Nassary's deposition transcripts already discussed above.
The Law and Standard on Summary Judgment
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 AD2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 AD2d 1002 (3rd Dept. 1988); Harry L. Cohen v. Genesee Supply Co., 7 AD2d 886 (4th Dept. 1959). Consequently any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Johnson v. Phillips, 161 AD2d 269 (1st Dept. 1999); Rue v. Stokes, 191 AD2d 245 (1st Dept. 1993).
Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must lose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. V. Habeeb, 248 AD2d 50 (1st Dept. 1997).
It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. On this issue the Court of Appeals has stated
[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. (Internal citations omitted).
Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 (1979). Thus, while evidence inadmissible when the motion is made and inadmissible when the case is tried, is insufficient to raise an issue of a fact precluding summary judgment; inadmissible evidence, whose inadmissability has been excused and which may likely be admissible at trial, may be considered. Phillips v. Joseph Kantor Company, 31 NY2d 307 (1972). In Phllips, for example, the court discussed that in lieu of affidavits from actual witnesses, detailing the substance of their testimony, affidavits listing witnesses' names, the substance of their testimony, and how said witnesses acquired their knowledge, could be considered and could raise an issue of fact sufficient to defeat summary judgment. Id. Similarly, in Zuckerman v. City of New York, 49 NY2d 557 (1980), the court discounted an attorney affirmation as speculative, in that said attorney lacked no personal knowledge of the facts he was proffering. Id. The court, however, in recognizing that inadmissible evidence could be used to preclude summary judgment, stated that if sad attorney had personal knowledge of a witnesses testimony and that witnesses' testimony created an issue fact, said affirmation would suffice to defeat summary judgment. Id.; See, Indig v. Finkelstein, 23 NY2d 728 (1968); Graso v. Angerami, 79 NY2d 813 (1991).
When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000):
Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcok, 190 AD2d 1037, 593 NYS2d 657; see generally, Black v. Chittenden, 69 NY2d 665, 511 NYS2d 833, 503 NE2d 1370; Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 34,1 357 NYS2d 478, 313 NE2d 776). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial(see, Schoen v. Rochester Gas Elec., 242 AD2d 928, 665 NYS2d 372; Mickelson v. Babcock, supra). See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).
Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960). It is well established that inadmissable hearsay is insufficient to raise any triable issues of fact sufficient to defeat summary judgment. Schwartz v. Nevatel Communications Corp., 778 NY2d 308 (2nd Dept. 2004); Zuckerman v. City of New York, 49 NY2d 557 (1980).
Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Lupinsky v. Windham Construction Corp., 293 AD2d 317 (1st Dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993). Similarly, affidavits which contradict plaintiff's own testimony and are completely at odds with plaintiff's own testimony shall be disregarded by the court. Branham v. Loews Orpheum Cinemas, Inc. , 31 AD3d 319 (1st Dept. 2006).
A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof. Mondello v. DiStefano , 16 AD3d 637 (2nd Dept. 2005); Peskin v. New York City Transit Authority, 304 AD2d 634 (2nd Dept. 2003).
Circumstantial Evidence
While it is true that ordinarily a plaintiff must establish the defendant's case by direct evidence it is equally true that a plaintiff can establish a prima facie case of negligence by relying on circumstantial evidence. A plaintiff establishes a defendant's negligence circumstantially when he "establishes facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred." Schneider v. Kings Highway Hospital Center, Inc., 67 NY2d 743, 744 (1986), quoting, Ingersoll v. Liberty Bank of Buffalo, 278 NY 1, 7 (1938); Healy v. ARP Cable, Inc., 299 AD2d 152 (1st Dept. 2002) . In Schneider, the court concluded that plaintiff, who alleged that she had sustained injury after falling off a bed in defendant's hospital, had established prima facie evidence of defendant's negligence." Schneider v. Kings Highway Hospital Center, Inc., 67 NY2d 743, 744 (1986). In that case it was alleged that defendants lowered a rail on plaintiff's bed and that as a result plaintiff fell off the bed. Id. While plaintiff could not establish, through actual eyewitness testimony, that defendant had lowered the rail, plaintiff established that she fell off the bed and that in her weakened state she could not have lowered the rail. Id. The court thus held that plaintiff had established a prima facie case of negligence against the defendant. Id. In Healy, plaintiff who claimed he slipped on a wet and just mopped floor, established a prima facie case of negligence against defendant. Healy v. ARP Cable, Inc., 299 AD2d 152 (1st Dept. 2002). Although there was no direct eyewitness evidence that defendant had mopped the floor prior to plaintiff's fall the court held that plaintiff had established a prima facie case of negligence when he demonstrated among other things, defendant's duty to mop prior to his fall and that the floor was wet when he fell. Id. The Law of Premises Liability and Common Law Negligence
Absent a duty of care to the person injured, a party cannot be held liable in negligence. Palsgraf v. Long Island R.R. Co., 248 NY 339 (1928). In cases where there is a duty and that duty is breached, a party is held to have acted negligently. To impose common-law negligence, the tort, the duty breached, must be the proximate cause of the accident. Misirlakis v. East Coast Entertainment Props., 297 AD2d 312 (2nd Dept. 2002).
The common law dictates that a landowner is duty bound to maintain his or her property in a reasonably safe condition. Basso v. Miller, 40 NY2d 253 (1976). Logically, the law dictates that reasonable care be utilized in the maintenance of the property, taking into account all circumstances such as the likelihood of injuries to others, the seriousness of the injury, and the burden involved in avoiding the risk. Id. This duty also obligates a landowner to warn against dangerous conditions, existing on his land, known or reasonably ascertainable by him through the use of reasonable and ordinary care. Cupo v. Karfunkel, 1 AD3d (2nd Dept. 2003). No duty to warn exists, however, if the dangerous condition complained of is open and obvious and reasonably discernible through the use of one's own senses. Id.; Orlando v. Audax Construction Corp. , 14 AD3d 500 (2nd Dept. 2005); Reuscher v. Pergament Home Centers, Inc., 247 AD2d 603 (2nd Dept. 1998); Jackson v. Supermarkets Genereal Corporation, 214 AD2d 650 (2nd Dept. 1995).
Premises liability is by no means predicated solely on ownership. Liability for a dangerous condition on or within a property, is instead predicated upon occupancy, ownership, control or special use of the premises at issue. Balsam v. Delma Engineering Corporation, 139 AD2d 292 (1st Dept. 1998); Valmon v. 4M M Corporation, 291 AD2d 343 (1st Dept. 2002); Allen v. Pearson Publishing, 256 AD2d 528 (2nd Dept. 1998); Millman v. CitiBank, N.A., 216 A.D.D2d (2nd Dept. 1995); Bruhns v. Antonelli, 255 AD2d 478 (2nd Dept. 1998); Kraemer v. K-Mart Corporation, 226 AD2d 590 (2nd Dept. 1996). Absent evidence of ownership, occupancy, control or special use, a defendant cannot be held liable for a defective condition upon property. Soto v. City of New York, 244 AD2d 544 (2nd Dept. 1997); Minott v. City of New York, 230 AD2d 719 (2nd Dept. 1996); Turrisi v. Ponderosa, Inc., 179 AD2d 956 (3rd Dept. 1992). Additionally, it is well established that no liability will be found absent proof that a defendant actually created the dangerous condition or alternatively, had actual or constructive notice of the same. Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994); Bogart v. F.W. Woolworth Compnay, 24 NY2d 936 (1969); Armstrong v. Ogden Allied Facility Management Corporation, 281 AD2d 317 (1st Dept. 2001); Wasserstrom v. New York City Transit Authority, 267 AD2d 36 (1st Dept. 1999); Allen v. Pearson Publishing, 256 AD2d 528 (2nd Dept. 1998); Kraemer v. K-Mart Corporation, 226 AD2d 590 (2nd Dept. 1996).
A defendant is charged with having constructive notice of a defective condition when said condition is visible, apparent, and exist for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy the same. Gordon v. American Museum of Natural History, 67 NY2d 836 (1986). The notice required must be more than general notice of any defective condition. Id.; Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994). The law requires notice of the specific condition alleged at the specific location alleged. Id. A general awareness that a dangerous condition may exist, is insufficient to constitute notice of a particular condition alleged to have caused an accident. Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994). Instead, liability can only be predicated on defendant's failure to remedy a dangerous condition after actual or constructive notice of the condition. Id. The absence of evidence demonstrating how long a condition existed prior to plaintiff's accident constitutes a failure to establish the existence of constructive notice as a matter of law. Anderson v. Central Valley Realty Company, 300 AD2d 422 (2nd Dept. 2002) (Plaintiff's inability to state how long the puddle which allegedly caused her fall existed prior to her fall was insufficient to establish that defendants had constructive notice of the same.); McDuffie v. Fleet Financial Group, Inc., 269 AD2d 575 (2nd Dept. 2000); Scirca v. Ariola Pastry Shop, 171 AD2d 859 (2nd Dept. 1991). It has been held that as a matter of law a condition which existed for 8 to 10 minutes is an insufficient period of time to constitute constructive notice. Branham v. Loews Orpheum Cinemas, Inc. , 31 AD3d 319 (1st Dept. 2006); Edwards v. Terryville Meat Co., 178 AD2d 580 (2nd Dept. 1991).
It is axiomatic that before negligence can be found it must be established that the accident causing instrumentality constitutes a dangerous condition, defect, or trap. Crawford v. Pick Quick Foods, Inc., 300 AD2d 431 (2nd Dept. 2002); Garry v. Rockville Center Union Free School District, 272 AD2d 437 (2nd Dept. 2000); Reynolds v. Reynolds, 245 AD2d 498 (2nd Dept. 1997).
Premises Liability For Acts Other than by Owners and Occupiers
Generally, the body of case law relating to dangerous conditions upon a premises applies to owners and those who occupy, control or otherwise maintain property. In cases where a dangerous condition is alleged to have been caused by a person visiting a premises the law is different. It is well settled that liability for a dangerous condition caused or created by a person visiting a premises is only established if the evidence demonstrates that said person caused and created the condition alleged. Mendoza v. 685 Sterling Realty Corp., 284 AD2d 437 (2nd Dept. 2001); Martinek v. Deli Button, Inc., 208 AD2d 809 (2nd Dept. 1994); Williams v. Southland Corp., 204 AD2d 717 (2nd Dept. 1994); Vliet v. Crowley Foods, Inc., 263 AD2d 941 (3rd Dept. 1999). That issues of notice are irrelevant as to these class of tortfeasors are evident in the court's holding in Martinek, where plaintiff was injured by newspaper straps left on newspapers delivered to the owner of a premises by a newspaper delivery company. Martinek v. Deli Button, Inc., 208 AD2d 809 (2nd Dept. 1994). In denying summary judgment to defendant owner, the court held that questions of fact as to notice and whether the condition was caused by the owners precluded summary judgment. Id. In granting summary judgment to the newspaper company, the court held that summary judgment was warranted when the evidence demonstrated that said defendant neither caused nor created the dangerous condition. Id. Thus, in that case the court applied two different standards for purposes of liability, concluding that the only issue with respect to defendant newspaper, a visitor to the premises, who neither owned, controlled nor maintained the premises, was whether the same caused or created the condition at issue. In Williams, the court once again applied two different standards to thew owner of the premises and to the defendant who delivered the newspapers to said location. Williams v. Southland Corp., 204 AD2d 717 (2nd Dept. 1994). The court denied summary judgment to defendant who delivered the newspaper, finding that questions of fact as to whether it caused or created the condition at issue precluded the same. Id.
When the issue concerns one hired to perform work at a premises, commonly termed a contractor, liability is premised on different legal principles. As cited above, the duty of care discussed, that with respect to maintenance, is generally only imposed upon the a limited class of people. A contractor hired to perform work at a premises is generally not liable in tort or for breach of contract for injuries sustained by a third party. Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002); Moch v. Rensselaer Water Co., 247 NY 160 (1928); Bugiada v. Iko, 274 AD2d 368 (2nd Dept. 2000). Persons hired to perform work at a premises are usually hired pursuant to contract. While such contractors are liable to the person who hired them, generally the owner of a premises, they are not liable to third for injury resulting from a breach of their contractual obligation. Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002). Consequently, if a contractor is to be held liable for injury to a third-party, one of three scenarios must exist. First, a contractor is liable for injury to a third-party if
the putative [contractor] has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good.
Id. at 139, quoting, Moch v. Rensselaer Water Co., 247 NY 160, 168 (1928). Stated differently, a contractor is liable to an injured third-party when said contractor causes or creates the condition alleged to have caused injury. Id. Second, a contractor is responsible for a third-parties injuries when the third-party detrimentally relies on the contractor's continued performance and the contractor's failure to perform positively and actively causes injury. Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002); Eaves Brooks Costume Compnay, Inc. v. Y.B.H. Realty Corp., 76 NY2d 220 (1990); Bugiada v. Iko, 274 AD2d 368 (2nd Dept. 2000). Lastly, when the contract is comprehensive and exclusive as to a property's maintenance, so that it's broadness displaces and in fact assumes the owner or possessors duty to safely maintain property, said contractor is liable to an injured third-party resulting from a breach of the services undertaken. Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002); Palka v. Servicemaster Management Services Corporation, 83 NY2d 579 (1994); Bugiada v. Iko, 274 AD2d 368 (2nd Dept. 2000).
On a motion for summary judgment a defendant establishes prima facie entitlement to summary judgment when he or she establishes a lack of notice, actual or constructive. Hughes v. Carrols Corporation, 248 AD2d 923 (3rd Dept. 1998); Edwards v. Wal-Mart Stores, Inc., 243 AD2d 803 (3rd Dept. 1997); Richardson-Dorn v. Golub Corporation, 252 AD2d 790 (3rd Dept. 1998). If defendant meets his burden it is then incumbent on plaintiff to tender evidence indicating that defendant had actual or constructive notice. Strowman v. Great Atlantic and Pacific Tea Company, Inc., 252 AD2d 384 (1st Dept. 1998).
Recurring Condition
Another way in which constructive notice can be established is by establishing the existence of a recurring condition. A defendant is charged with constructive notice of a dangerous condition when said defendant has actual notice of an ongoing or recurring condition. Chianese v. Meier, 98 NY2d 270 (2002); Uhlich v. Canada Dry Bottling Company of New York, 305 AD2d 107 (1st Dept. 2003); Simoni v. 2095 Cruger Associates, 285 AD2d 431 (1st Dept. 2001). When a recurring condition is alleged and proven, defendant is charged with constructive notice of each recurrence. Id. To recover, plaintiff must prove that the defendants were aware of the specific recurrent condition alleged. Anderson v. Central Valley Realty Company, 300 AD2d (2nd. Dept 2002). Plaintiff must of course establish that the recurrent condition existed on the date of plaintiff's accident. Zanki v. Cahill , 2 AD3d 197 (1st Dept. 2003). Thus, not only must plaintiff establish that a recurrent condition existed prior to his accident, he must also establish actual notice of at least one occurrence of the condition and the existence of the condition on the date in question. In Batista v. KFC National Management Company, 21 AD3d 917 (2nd Dept. 2005), the court held that defendant had notice of a recurring condition, wood chips emanating from defendants property to the adjacent public sidewalk, when it routinely inspected its premises noting wood chips on the adjacent sidewalk. In Fielding v. Rachlin Management Corp., 309 AD2d 894 (2nd Dept. 2003), the court held that plaintiff had established notice of the puddle which caused plaintiff's fall when plaintiff established that the puddle was the result of rain water emanating from an open window and that defendants had actual notice of the same condition on prior occasions.
General knowledge that a person or persons routinely spill water on the ground thereby creating a dangerous condition is not a notice of a recurrent condition. Gloria v. MGM Emerald Enterprises, Inc., 298 AD2d 355 (2nd Dept. 2002). Instead, this is merely a general awareness that people might wet the floor. Id. under these circumstances, before liability can be imputed, actual or constructive notice of each occurrence is required. Put another way, a recurring condition must involve a specific defect on the premises which contributes or causes a dangerous condition to occur. In Gloria, plaintiff slipped and fell on a wet floor. Id. It was alleged that the floor became wet by patrons spilling drinks within the premises and that defendants were aware that patrons routinely spilled drinks on the ground. Id. it was further alleged that this was a recurrent condition. Id. The Court rejected the notion that these facts gave rise to a recurrent condition. Id. Unlike a leaky machine, unstable display, or leaks which caused rainwater to accumulate on stairs, a condition such as people spilling drinks on the ground cannot be guarded against in advance and requires notice of each occurrence to be remedied. Id. The Court held that this was not a recurrent condition. Id.
Discussion
Tasty's motion for summary judgment is hereby denied. The very evidence submitted by Tasty raises a question of fact with regard to whether Tasty, through the actions of its employees created the condition which allegedly caused McKnight's accident, namely a two foot wide trail of bloody water allegedly deposited by Tasty in the course of delivering raw chicken to the premises herein. At the outset it bears mentioning that all parties to the instant action fail to recognize the applicable law controlling Tasty's liability. Unlike the owner, person obligated to maintain property, or a person who possesses or otherwise controls property, Tasty's liability is premised upon whether it caused and created the condition herein. Issues of notice do not generally apply to Tasty, since it has no obligation to maintain the premises herein. To the extent that Tasty was merely a visitor upon Turyali's property, who neither owned, controlled, or maintained the same, its liability can only be established if it is demonstrated that Tasty caused and/or created the condition alleged. Accordingly, the only pertinent inquiry for purposes of liability and Tasty's burden, is whether Tasty caused or created the condition alleged herein. The very evidence submitted by Tasty, namely McKnight's deposition circumstantially establishes that Tasty created the condition at issue. A plaintiff establishes a defendant's negligence circumstantially when he establishes facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred. In this case, Tasty's evidence establishes facts from which its negligence can be inferred. McKnight testified that he observed Tasty's employees deliver chicken to the premises herein, that the delivery took several minutes, and that while he never saw any water leak and spill on to the floor, the boxes herein were wet. Mcknight further stated that prior to sitting down at his table and indeed prior to Tasty's delivery the area where he fell was bereft of any water. As such, McKnight's testimony establishes facts from which it can be reasonably inferred that Tasty caused and created the condition herein, a wet and bloody spill, and that said condition caused his accident. As such, the very evidence submitted by Tasty circumstantially establishes Tasty's liability rather than, as argued by Tasty, negates it. For that reason, Tasty has failed to establish prima facie entitlement to summary judgment.
To the extent that Tasty has failed to establish prima facie entitlement to summary judgment, the Court need not address the adequacy of plaintiffs' opposition. Accordingly, Tasty's motion is hereby denied.
Turyali's cross-motion is hereby granted. The evidence submitted by Turyali demonstrates that it did not cause nor create the condition alleged herein and that it had no prior notice of the same. The evidence submitted by Turyali, the very same evidence submitted by Tasty establishes that Turyali did not cause nor create the watery condition herein, that it had no actual notice of the same and that it had no constructive notice of the same. With regard to whether Turyali caused or created the condition herein, McKnight's own testimony establishes that at no time prior to his fall did any of Turyali's employees enter the customer area where he had his accident. In fact, McKnight's own testimony attributes that water condition herein to acts perpetrated by Tasty. Accordingly, Turyali demonstrates that it did not cause nor create the condition herein. With regard to notice McKnight testified that he never complained about the condition herein and that he did not know how long the condition herein existed prior to his fall. Accordingly, Turyali demonstrates a lack of actual notice and a lack of constructive notice. Thus, Turyali demonstrates prima facie establishment to summary judgment.
Plaintiffs' opposition fails to raise any material issues of fact sufficient to preclude summary judgment. In opposition to Turyali's cross-motion, plaintiffs rely on Hadi and Nassary's deposition testimony in an effort to establish that Turyali had constructive notice of the condition herein. Plaintiffs aver that constructive notice is established since the condition herein was a recurring condition. Plaintiffs aver that Hadi's testimony, to wit, that Tasty made deliveries twice weekly, coupled with Nassary's testimony that at times some water would spill from the boxes delivered by Tasty, is evidence of a recurring condition. The Court disagrees. A defendant is charged with constructive notice of a dangerous condition when said defendant has actual notice of an ongoing or recurring condition. Preliminarily, plaintiffs argument fails, since they fail to establish that Hadi and thereby Turyali had notice of any water spilling during Tasty's delivery. Hadi denied ever seeing any such event and Nassary never testified that such an event would in fact occur when Tasty made deliveries to the premises herein. Moreover, to the extent that there is no evidence that this would occur with every delivery it cannot be deemed a recurring condition. Accordingly, plaintiffs fail to establish that the condition herein was recurring and fail to establish that Turyali had constructive notice of the same. With regard to whether Turyali caused the condition herein or other wise had notice of the same, plaintiff relies on the very same evidence, submitted by Turyali, which as already discussed establishes a lack of notice and establishes that Turyali did not create the condition herein. As such, plaintiffs fail to raise any issues of material facts sufficient to prelude summary judgment. Turyali's cross-motion is hereby granted. It is hereby
ORDERED that plaintiffs' complaint as a against Turyali, and all cross-claims, if any, be hereby dismissed with prejudice. It is further
ORDERED that the third-party complaint be hereby dismissed with prejudice. It is further
ORDERED that defendants serve a copy of this Order with Notice of Entry upon plaintiffs within thirty (30) days hereof.
This constitutes this Court's decision and Order.