Opinion
No. 703949/2014.
10-19-2016
Inez COPE, Plaintiff, v. HOLIDAY INN BUDD LAKE, Defendant.
This is an action to recover damages for personal injuries sustained by plaintiff on June 15, 2013 when she purportedly tripped and fell in the lobby hallway of defendant's premises located at 1000 International Drive, Budd Lake, New Jersey. Plaintiff alleges that as a result of the incident, she sustained serious personal injuries to her neck and hip.
Plaintiff commenced this action by filing of a summons and complaint on April 29, 2014. Issue was joined by service of defendant's verified answer dated September 8, 2014. Plaintiff filed a Note of Issue on February 4, 2016. Defendant now moves for an order pursuant to CPLR 3212(b), granting summary judgment and dismissing the complaint.
Defendant concedes that the motion was made four days late due to a clerical error. Specifically, defendant incorrectly calculated the time within which to bring the subject motion based upon the office's date-stamped copy of the Note of Issue rather than from the time the Note of Issue was filed. Plaintiff does not oppose the branch of defendant's motion for leave to make the untimely summary judgment motion. This Court finds that defendant has demonstrated good cause for the delay in making the motion, and therefore, the late summary judgment motion will be decided herein (see Brill v. City of New York, 2 NY3d 648 [2004] ; Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124 [2000] ; Quinlan v. Kaufman, 258 A.D.2d 453 [2d Dept.1999] ).
In support of the motion, defendant submits an affirmation from counsel, Paul McBride, Esq; a copy of the pleadings; a copy of plaintiff's verified bill of particulars; a copy of the Note of Issue; copies of the transcripts of the examination before trial of plaintiff, non-party witness Linda Cope, and defendant's employee Erick Frank; copies of photographs of the area where the incident occurred; and a copy of the report of incident.
At her examination before trial taken on July 20, 2015, plaintiff testified that the night before the incident she dined at the restaurant located on the main floor where the check-in area is located. She never had any problems and never made any complaints to hotel staff from the time she arrived up until the time the incident occurred. The incident occurred after she ate breakfast in same restaurant she ate dinner at the night before. She was walking from the restaurant to the elevators. She was alone when she fell. She believed the carpet where she fell was a "pinkish" color. The carpet was rippled, causing her to fall. Her right foot came into contact with the raised rug and her foot got caught. She believed the ripple was two inches in height. She was not looking down at the ground at any point prior to her fall. She did not know what caused the ripple or how long it was there. The carpet did not look used or old.
Plaintiff's daughter, Linda Cope, appeared for an examination before trial on July 20, 2015. She did not witness plaintiff's incident. She was not aware of anyone who saw plaintiff fall. The day before the incident, she and her family walked down the subject carpeted hallway. The ripple appeared to be on the right-hand side of the hallway. She also testified that the carpet where plaintiff fell was a "pinkish" color.
On behalf of defendant, Erick Frank appeared for an examination before trial on November 11, 2015. He is the front office manager for Northstar Management, LLC, which owns defendant's property. He has been the front office manager since October 2011. The photographs showed the carpet area that is outside of the pool. The photographs were an accurate depiction of how the carpet currently looked. He first learned of plaintiff's incident when he was called on his two-way radio. He was informed that someone had fallen outside of the pool area. The photograph that was made a part of the incident report was taken by him shortly after plaintiff was placed into the ambulance. From the time he started working at the hotel to the date of the deposition, there was only one renovation regarding the carpeting. The renovation took place in early 2013. There were no complaints about the carpet in June 2013 or prior to June 2013. After plaintiff's incident he inspected the carpet and could not find any bulging or rippling. He was not aware of anyone falling on the carpet in the subject area prior to plaintiff's incident.
Defendant contends that the submitted evidence establishes that no defect existed, and thus, defendant did not owe plaintiff any duty. Defendant further contends that even if there was a defect, it neither caused nor created the alleged defect, nor was it on actual or constructive notice of any alleged defect.Lastly, defendant contends that plaintiff has failed to identify a specific defect and as such summary judgment is warranted.
In opposition, plaintiff's counsel, Aron F. Rattner, Esq., contends that the photographs presented to plaintiff at the time of her deposition did not depict the carpet upon which she fell. Rather, plaintiff contends that on the date of her incident, the new carpeting was not yet installed.
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his or her position (see Zuckerman v. City of New York, 49 N.Y.2d 557[1980] ).
A landowner must act as a reasonable person in maintaining his or her property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Peralta v. Henriquez, 100 N.Y.2d 139 [2003] ; Basso v. Miller, 40 N.Y.2d 233 [1973] ; Cupo v. Karfunkel, 1 AD3d 48 [2d Dept.2003] ).
Although defendant contends that based on the deposition testimonies and the photographs a defect did not exist and thus defendant did not owe plaintiff any duty, viewing the evidence submitted in the light most favorable to the nonmoving party, there are issues of credibility which must be determined by the trier of fact rather than on a motion for summary judgment. Specifically, plaintiff contends that the photographs do not accurately represent the subject carpet on the date and time of her incident. However, defendant's front office manager contends that the photograph annexed to the incident report was taken by him on the day of the incident. "A court may not weigh the credibility of witnesses on a motion for summary judgment, unless it clearly appears that the issues are not genuine, but feigned" (Conciatori v. Port Auth. of N.Y. & N. J., 46 AD3d 501 [2d Dept.2007] ). Thus, this Court finds that there are triable issues of fact (see Boockvor v. Fischer, 56 AD3d 405 [2d Dept.2008] ; Makaj v. Metropolitan Transp Auth, 18 AD3d 625 [2d Dept.2005] ).
Additionally, a defendant owner or entity who is responsible for maintaining a premises who moves for summary judgment in a slip-and-fall or trip-and-fall case involving the property has the initial burden of making a prima facie showing 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 Bloomfield v. Jericho Union Free School Dist, 80 AD3d 637 [2d Dept.2011] ; Arzola v. Boston Props. Ltd. Partnership, 63 AD3d 655 [2d Dept.2009] ; Bruk v. Razag, Inc., 60 AD3d 715 [2d Dept.2009] ). To constitute constructive notice, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v. American Museum of Natural History, 67 N.Y.2d 836 [1986] ). To meet the defendant's initial burden on the issue of lack of constructive notice, 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 Association, Inc., 57 AD3d 598 [1986] ; see Pryzywalny v. New York City Tr. Auth., 69 AD3d 598 [2d Dept.2010] ; Arzola v. Boston Props. Ltd. Partnership, 63 AD3d 655 [2d Dept.2009] ; Braudy v. Best Buy Co., Inc., 63 AD3d 1092 [2d Dept.2008] ).
Here, this Court finds that defendant failed to proffer sufficient evidence as to when the carpet on which plaintiff fell had last been inspected prior to plaintiff's fall. Although Mr. Frank testified that part of his job responsibilities was to visually inspect the carpeting, he was not asked and he did not testify as to when or if he actually inspected the carpet on the day of the plaintiff's accident. Therefore, Mr. Frank's testimony merely referred to his general inspection practices, but provided no evidence regarding any particularized or specific inspection or cleaning procedure in the area of plaintiff's fall on the date of the incident. Thus, defendant's evidence in support of the motion was insufficient to satisfy the initial burden on the issue of lack of constructive notice (see Altinel v. John's Farms, 113 AD3d 709 [2d Dept.2014] ; Mercedes v. City of New York, 107 AD3d 767 [2d Dept.2013] ; Klerman v. Fine Fare Supermarket, 96 AD3d 907[2d Dept.2012] ).
Accordingly, for all of the above stated reasons, it is hereby
ORDERED, that defendant's motion for summary judgment is denied.