Opinion
Index 602113/2019
04-19-2021
SANDRA DERISI, Plaintiff, v. KING KULLEN GROCERY CO. INC., Defendant.
MIRMAN, MARKOVIT, & LANDAU, P.C. Attorney for Plaintiff CULLEN AND DYKMAN LLP Attorney for Defendant
Unpublished Opinion
Motion Date: 1/14/21
Adj. Date: 2/18/21
MIRMAN, MARKOVIT, & LANDAU, P.C. Attorney for Plaintiff
CULLEN AND DYKMAN LLP Attorney for Defendant
JOSEPH A. SANTORELLI, JUSTICE
Upon the following papers read on this e-filed motion for summary judgment: Notice of Motion! Order to Show Cause and supporting papers by defendant, dated December 14, 2020; Notice of Cross Motion and supporting papers _; Answering Affidavits and supporting papers by plaintiff, dated February 5, 2021; Replying Affidavits and supporting papers by defendant, . dated February 16, 2021; Other _; it is
ORDERED that the motion by defendant King Kullen Grocery Co., Inc. for summary judgment dismissing the complaint is granted.
Plaintiff Sandra Derisi commenced this action to recover damages for personal injuries she allegedly sustained as a result of an accident that occurred on November 19, 2018, at a supermarket operated by defendant King Kullen Grocery, Co., Inc., in Huntington Station, New York. By the complaint, as amplified by the bill of particulars and amended bill of particulars, plaintiff alleges, among other things, that defendant negligently permitted a sharp piece of counter to protrude, which created a trap on the premises.
Defendant now moves for summary judgment dismissing the complain.. Defendant argues that the "bumper guard" that allegedly caused plaintiffs accident was open and obvious and not inherently dangerous In support of its motion, defendant submits, among other things, the transcripts of the deposition testimony of plaintiff and James Hodermarsky, and various photograph..
In opposition plaintiff argues, among other things, that triable issues of fact remain as to whether the bumper guard was open and obvious and not inherently dangerous, and whether It and the flooring created an "optical illusion" In support of her opposition, plaintiff submits, among other things, her own affidavit and the affidavit of Stanley Fein, P.E.
At plaintiffs deposition, she testified that the accident occurred at approximately 10:15 p.m., at a stand-alone counter displaying cheeses. The counter allegedly had "two short sides" and "two long sides." Prior to the accident, plaintiff allegedly was looking straight ahead and intended to walk around the display. Plaintiff testified that the accident occurred when her right shin hit the top portion of a "guard" for the corner of the display case. She further testified that she did not observe the subject guard until after the accident occurred. While plaintiff allegedly could not identify with certainty the precise material composing the guard, she described the material as "very hard." When asked to describe the lighting in the area of the accident, plaintiff testified that it was "not bright, bright; but it wasn't dim, dim." She further described the lighting as "medium." She clarified that she did not trip and fall. Plaintiff identified several photograph,, including photographs depicting the bumper guard allegedly involved in her accident. She testified that there were no other witnesses to her accident. Plaintiff also testified that she shopped at the subject store approximately two times per week in 2018, and that she never observed the guards on prior visits to this store.
James Hodermarsky appeared for a deposition on behalf of defendant. At his deposition, Hodermarsky testified that he has been employed as a store manager for the subject supermarket for approximately 2½ years. He further testified that he was a store manager for the subject supermarket in November of2018, and that his responsibilities included overseeing all departments and the maintenance of display cases. According to Hodermarskys's deposition testimony, a "deli island," which contained more than one bumper guards, was present in the store in November 2018. He stated that the deli island had a black base, that the surrounding flooring was black, and that he believed that the bumper guards were composed of plastic. When asked to describe the bumper guards, he testified that he believed that they were "just black," and that they permanently were affixed onto the island. He identified certain photographs as fairly and accurately depicting the bumper guard and floor on the date of the accident. When asked to describe the type of lighting in the area of the deli department, Hodermarsky stated that it was "[r]egular store lighting." Hodermarsky also testified that prior to the accident, he never received any complaints regarding the bumper guards on that particular island, and that he did not know of any accidents or incidents involving the bumper guards.
A landowner, or a party in possession or control of real property, has a duty to maintain its property in a reasonably safe condition (see Kellman v 45 Tiemann Assoc., 87 N.Y.2d 871, 638 N.Y.S.2d 937 [1995]; Dougherty v 359 Lewis Ave. Assoc., LLC, 191 A.D.3d 763, 2021 NY Slip Op 00835 [2d Dept 2021]; Wittman v Nespola, 190 A.D.3d 1012, 136 N.Y.S.3d 885 [2d Dept 2021]). There is no duty to protect or to warn against conditions that are an open or obvious and not inherently dangerous (see Hayward v Zoria Hous., LLC, 187 A.D.3d 997, 133 N.Y.S.3d 599 [2d Dept 2020]; Spina v Brookwood Ronkonkoma, LLC, 185 A.D.3d 621, 124 N.Y.S.3d 814 [2d Dept 2020]; Holmes v Macy's Retail Holdings, Inc., 184 A.D.3d 811, 124 N.Y.S.3d 582 [2d Dept 2020]). A condition is open and obvious where it is readily observable by those employing the reasonable use of their senses, based on the circumstances at the time of the accident (see Robbins v 237 Ave. X, LLC, 177 A.D.3d 799, 113 N.Y.S.3d 235 [2d Dept 2019]; Ochoa-Hoenes v Finkelstein, 172 A.D.3d 1080, 101 N.Y.S.3d 81 [2d Dept 2019]; Davidoff v First Dev. Corp., 148 A.D.3d 773, 48 N.Y.S.3d 755 [2d Dept 2017]). The question of whether a condition is open and obvious cannot be divorced from the surrounding circumstances and generally is a question for the fact finder to resolve (see Brett v AJ 1086 Assoc., LLC, 189 A.D.3d 1153, 138 N.Y.S.3d 546 [2d Dept 2020]; Robbins v 237 Ave. X, LLC, supra; Shermazanova v Amerihealth Med., P.C, 173 A.D.3d 796, 103 N.Y.S.3d 160 [2d Dept 2019]). Similarly, whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the specific facts of the case (see Brett v AJ 1086 Assoc., LLC, supra; Holmes v Macy's Retail Holdings, Inc., supra; Graffino v City of New York, 162 A.D.3d 990, 80 N.Y.S.3d 444 [2d Dept 2018]). To obtain summary judgment, a defendant must establish, prima facie, that the alleged condition was open and obvious and not inherently dangerous (see Masker v Smith, 188 A.D.3d 867, 135 N.Y.S.3d 135 [2d Dept 2020]; Karpel v National Grid Generation, LLC, 174 A.D.3d 695, 106 N.Y.S.3d 99 [2d Dept 2019]; Crosby v Southport, LLC, 169 A.D.3d 637, 94 N.Y.S.3d 109 [2d Dept 2019]).
The defendant established its prima facie entitlement to summary judgment dismissing the complaint. Defendant, through the submission of, among other things, photographic evidence, demonstrated, prima facie, that the subject bumper guard was open and obvious and readily observable by the reasonable use of one's senses, and that it was not inherently dangerous (see Sarab v BJ's Wholesale Club, 174 A.D.3d 933, 103 N.Y.S.3d 307 [2d Dept 2019], lv denied 34 N.Y.3d 905, 114 N.Y.S.3d 286 [2019]; Frankl v Costco Wholesale Corp., 165 A.D.3d 760, 82 N.Y.S.3d 902 [2d Dept 2018]; Bartholomew v Sears Roebuck and Co., 159 A.D.3d 786, 69 N.Y.S.3d 813 [2d Dept 2018]; Gerner v Shop-Rite of Uniondale, Inc., 148 A.D.3d 1122, 50 N.Y.S.3d 459 [2d Dept 2017]). Significantly, there is no evidence that the lighting was inadequate, that other customers were present in the area of the accident, or that the subject bumper guard was in any way concealed at the time of the accident (see Gibbons v Lido & Point Lookout Fire Dist., 293 A.D.2d 647, 740 N.Y.S.2d 439 [2d Dept 2002]; cf Elfassi v Hollister Co., 167 A.D.3d 569, 88 N.Y.S.3d 505 [2d Dept 2018]; Dalton v North Ritz Club, 147 A.D.3d 1017, 46 N.Y.S.3d 900 [2d Dept 2017]; Simon v Comsewogue School Dist., 143 A.D.3d 695, 39 N.Y.S.3d 180 [2d Dept 2016]). The Court notes that as the video footage submitted by defendant was not properly authenticated, the Court did not consider it in making its determination (see National Ctr. for Crisis Mgt. v Lerner, 91 A.D.3d 920, 938 N.Y.S.2d 138 [2d Dept 2012]; Read v Ellenville Nat. Bank, 20 A.D.3d 408, 799 N.Y.S.2d 78 [2d Dept 2006]; cf Quinones v 2074 White Plains Road Building, LLC, 180 A.D.3d 721, 115 N.Y.S.3d 705 [2d Dept 2020]), and in any event, defendant fails explain how such footage was relevant to the motion.
In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]). Stanley Fein, P. E., who avers that he is a licensed engineer in the State of New York, supplied an affidavit on behalf of plaintiff. Fein avers that he reviewed the pleadings, deposition transcripts, and unidentified photographs for this action. Notably, Fein misidentifies the location of the accident, and misapprehends the nature of the plaintiffs accident. He avers that plaintiffs accident was a trip-and-fall accident, and attributes her accident and injuries to a "display cabinet and floor," while plaintiff unequivocally testified that she did not trip and fall, and that her shin hit a guard. Even were the Court to ignore such an obvious misunderstanding on the part of plaintiff's expert, and ascribe Fein's written opinions to the bumper guard specified by plaintiff, his affidavit is insufficient to raise a triable issue of fact, as it is speculative, conclusory, and lacking in foundational facts (see Bartholomew v Sears Roebuck & Co., supra; Boyle v Pottery Barn Outlet, 117 A.D.3d 665, 985 N.Y.S.2d 291 [2d Dept 2014]). Significantly, Fein never visited the accident site, and never took any measurements. Yet, Fein describes "the bumper" as a "rubber bumper," and determines that it extended approximately 4.5 to 6 inches, based solely on deposition testimony and unspecified photographs. While Fein avers that the bumper guard and floor tiles were "the same black color," and created an "optical illusion," the record, namely, the photographic evidence, fails to support an argument that they created optical confusion (see McFeely v Mercy Hosp. of Buffalo, 177 A.D.3d 1279, 113 N.Y.S.3d 416 [ 4d Dept 2019]; Namm v Levy, 172 A.D.3d 507, 98 N.Y.S.3d 426 [1st Dept 2019]; Hallfor Stephenson v New Way Remodeling, 168 A.D.3d 620, 92 N.Y.S.3d 39 [1st Dept 2019]; Franchini v American Legion Post, 107 A.D.3d 432, 967 N.Y.S.2d 48 [1st Dept 2013]). Specifically, the photographic evidence shows the that subject bumper guard was not the same or similar color as the surrounding floor, since it was black, with a white strip, while the surrounding floor was gray with white specks. Although Fein suggests the use of different colors, warning signs, and/or warning strips, he disregards that the subject bumper guard was a different color than the floor, and he fails to address that it had a white warning strip. He also cites to no authority mandating the design of the bumper guard and floor to be different than the one present at the subject supermarket. Additionally, Fein states that one's line of sight while walking and looking straight is between the horizontal and 18 degrees below the horizontal, and avers, without ever visiting the subject supermarket, that the "display defect is below the 18 degrees." He concludes, without further elaboration, that the subject condition "comes upon" one approaching it as a "dangerous and unexpected trap." Moreover, Fein's affidavit was speculative and conclusory in it its attribution of plaintiff's accident and injuries to defendant's purported negligent maintenance of "a display cabinet and floor that was dangerous and hazardous." Plaintiff's averment that the guard, display case, and floor were the same color is also insufficient, standing alone, to raise a triable issue of fact (see McFeely v Mercy Hosp. of Buffalo, supra). Further, plaintiff's reliance on the accident report was misplaced, as it was not in admissible form (see Blocker v Filene's Basement, 126 A.D.3d 744, 5 N.Y.S.3d 265 [2d Dept 2015]; Stock v Otis El. Co., 52 A.D.3d 816, 861 N.Y.S.2d 722 [2d Dept 2008]). Assuming arguendo that the accident report was submitted in admissible form, it also is insufficient to raise a triable issue of fact. The Court finds plaintiff's remaining arguments in opposition unavailing.
Accordingly, the motion by defendant for summary judgment dismissing the complaint is granted.