Opinion
102660/09.
Decided March 14, 2011.
In this personal injury action, Plaintiff alleges that she slipped and fell near the bar area of a restaurant, which she was "expected" to pass through, to enter the dining area. It is undisputed that at the time that she fell, there were not mats or runners placed near the customer side of the bar area or in the service area, which also contained a refrigerator and a sink with a rack over the sink for storing glasses. It is also undisputed that at the time of the accident, only two other customers were in the restaurant, sitting near the middle of the bar, and that it was a bright sunny day. Plaintiff testified that after she fell, she noticed that her pants were "soaked" with water. Defendants move for summary judgment on the basis that Plaintiff has not demonstrated that Defendants had actual or constructive notice of the allegedly hazardous condition. They rely on testimony of the restaurant owner and an employee present when Plaintiff fell (but who did not observe the fall), who both state they never noticed any accumulation of water prior to the accident. In opposition to the motion, Plaintiff submits her deposition testimony, an affidavit from her friend who supports Plaintiff's testimony, and an affidavit from a safety expert who observed a puddle on the bottom of the refrigerator when he inspected the area after the accident (with Defendants' safety expert present), and who also observed rust on the bottom of the refrigerator, leading him to the reasonable inference that water had been accumulating over time.
It is well established that owners must keep premises 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" ( Peralta v Henriquez, 100 NY2d 139, 144 [citation and internal quotation marks omitted]). In a slip-and-fall case, the plaintiff has the burden of demonstrating that the defendant either created or had actual or constructive notice of the dangerous condition which caused the injury ( Smith v Costco Wholesale Corp. , 50 AD3d 499 , 500 [1st Dept 2008]; Matias v Rebecca's Bakery Corp. , 44 AD3d 429 [1st Dept 2007]). "To constitute constructive notice, a defect must be visible and apparent, and must exist for a sufficient length of time before the accident to permit defendant's employees to discover and remedy it" ( Barrerra v New York City Tr. Auth., ___ AD3d ___, 2009 WL 910758, *1, 2009 NY App Div LEXIS 2583, **1-**2 [1st Dept 2009]).
When a defendant moves for summary judgment in a slip-and-fall case, it has the burden of demonstrating that it neither created nor had notice of the allegedly dangerous condition ( see Manning v Americold Logistics, LLC , 33 AD3d 427 [1st Dept 2006] [on a motion for summary judgment, "defendant met its initial burden of demonstrating, prima facie, that it did not create the alleged hazard or have actual or constructive notice of it"]; Giuffrida v Metro N. Commuter R.R. Co., 279 AD2d 403, 404 [1st Dept 2001] ["Contrary to defendant's suggestion, it is not plaintiff's burden in opposing the motions for summary judgment to establish that defendants had actual or constructive notice of the hazardous condition. Rather, it is defendants' burden to establish the lack of notice as a matter of law"]).
Even where there is no direct evidence that the defendant affirmatively created a dangerous condition, circumstantial evidence may be sufficient to create an issue of fact as to whether the defendant created such a condition ( see Healy v ARP Cable, 299 AD2d 152, 154 [1st Dept 2002] ["(I)t is enough that (plaintiff) shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred"] [internal quotation marks and citation omitted]; see also Stone v KFC of Middletown , 5 AD3d 106 [1st Dept 2004] ["[d]espite defendants' attempt to distinguish between the injured plaintiff's description of where the accident occurred and where his brother had observed the mopping, the evidence allowed for a reasonable inference that the slip and fall occurred where the mopping was observed, and was causally related"]).
In the instant case, the is sufficient evidence to raise an issue of fact as to both actual notice and constructive notice of the allegedly hazardous condition, based on (1) the location of the bar area containing a sink and refrigerator which must be passed on the way to the dinning area ( see Femenella v Pellegrini Vineyards, LLC ( 16 AD3d 546 [2d Dept 2005] [summary judgment denied where plaintiff fell from a chair placed by defendant too close to the edge of a platform surrounded by hedges]; Chambers v Maury Povich Show ( 285 AD2d 440 [2d Dept 2001] [summary judgment denied where plaintiff fell from a chair placed by defendant too close to the aisle]), (2) the absence of runners or mats to soak up any water which might spill from washing/storing glasses or in connection with serving drinks, (3) Plaintiff's safety expert's observation of a puddle on the bottom of the refrigerator, as well as his observation of rust on the bottom of the refrigerator, and his reasonable inference that water had been accumulating over time. Though Defendants take issue with the expert's citation to various standards because the standards are "non-mandatory" or because, as to the need for runners and mats, the expert does not cite any standard, but merely his own opinion based on his education and experience, the Court finds the expert's opinion as probative, and in any event, a trier of fact could find in Plaintiff's favor, even in absence of the expert's opinions. The absence of runners or mats to soak up water which might spill from washing/storing glasses or in connection with serving drinks, in an area where customers must pass through, as well as the evidence regarding the rusted refrigerator, and the fact that the accident occurred on a sunny day when there were only two customers in the restaurant (which would negate other causes for the accumulation of a puddle of water), is sufficient evidence for a lay person to find negligence. Moreover, although the restaurant owner and employee testified that they never noticed any accumulation of water prior to the accident, Defendants do not dispute that Plaintiff did in fact fall on water and was "soaked." Accordingly, the trier of fact may conclude that the owner and employee were not very observant. Additionally, although Defendants' claim that Plaintiff has not demonstrated how long the puddle existed, when a property owner creates a dangerous condition by his or her own affirmative act, the "usual questions of notice of the condition are irrelevant since the defendant created the condition" ( Cook v Rezende, 32 NY2d 596, 599; see also Weingrad v Aguilar Gardens, 227 AD2d 546 [2d Dept 1996] ["[t]he plaintiffs need not demonstrate that the hazard was visible and apparent, or had existed for a particular length of time since there was evidence that the porter created the allegedly hazardous condition while cleaning the floor"]).
Defendants also allege that the expert affidavit is untimely, as it was not exchanged until this motion, three months after the note of issue was filed. Defendants cite Construction by Singletree, Inc. v J.C. Construction Management, Corp., 55 AD3d 861 [2d Dept 2008]). However, the First Department has avoided deciding the issue in Mauro v Rosedale Enters , 60 AD3d 401 [1st Dept 2009]) and in fact, cited to a case in the Fourth Department, where the expert affidavit was accepted in opposition to a motion for summary judgment, even though it had not been disclosed pretrial. In any event, Rosedale would not be decisive as there the Court made repeated orders regarding expert disclosure. As 3101(d) (i) contains no definitive deadline for expert disclosure and as Defendants were aware of the identity of the expert, as he made an inspection with their expert, the Court accepts the affidavit as timely.
Accordingly, cases cited by Defendants involving supermarkets or the "tracking"of water into stores are inapposite.
Accordingly, it is
ORDERED that the Defendants' motion for summary judgment is denied; and it is further
This Constitutes the Decision and Order of the Court.