Opinion
Index No. 601738/2018 CAL. No. 202000765OT Mot. Seq. No. 002
04-27-2021
DIANE HUWER, Plaintiff, v. ELP BUILDERS II INC. and CAPELL1 BY MARIA LTD., Defendants.
SIBEN & SIBEN, LLP Attorney for Plaintiff. BAXTER SMITH & SHAPIRO, P.C. Attorney for Defendant Elpa Builders II Inc. DEVITT SPELLMAN BARRETT, LLP Attorney for Defendant Capelli by Maria Ltd.
Unpublished Opinion
SIBEN & SIBEN, LLP Attorney for Plaintiff.
BAXTER SMITH & SHAPIRO, P.C. Attorney for Defendant Elpa Builders II Inc.
DEVITT SPELLMAN BARRETT, LLP Attorney for Defendant Capelli by Maria Ltd.
PRESENT: Hon. JOSEPH FARNETI JUDGE.
JOSEPH FARNETI JUDGE.
Upon the following papers read on this e-filed motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers filed by defendant Capelli by Maria Ltd.. on January 4, 2U21; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers filed by plaintiff on February 25, 2021; Replying Affidavits and supporting papers filed by defendant Capelli by Maria Ltd.. on March 5. 2021; Other; it is, ORDERED that the motion by defendant Capelli by Maria Ltd. for summary judgment dismissing the complaint and cross claims against it is granted to the extent set forth herein, and is otherwise denied.
Plaintiff Diane Huwer commenced this action to recover damages for personal injuries she allegedly sustained on October 26, 2017, when she tripped and fell over a floor mat while exiting a hair salon operated by defendant Capelli by Maria Ltd. ("Capelli"). By the amended complaint, as amplified by the bill of particulars, plaintiff alleges that Capelli was negligent in, inter alia, permitting the edges of the subject floor mat to be raised or lifted, which created a dangerous condition on the premises. By Order dated December 14, 2020, this Court granted the motion by defendant Elpa Builders II Inc. ("Elpa") for summary judgment dismissing the complaint and the cross claim for common law indemnification against it.
Capelli now moves for summary judgment dismissing the complaint and cross claims against it. Capelli argues, among other things, that the subject mat did not constitute a dangerous condition. In support of its motion, Capelli submits, inter alia, the transcripts of the deposition testimony of plaintiff, Douglas Hornberger, and Maria Lamariana, and a DVD recording. In opposition, plaintiff argues, in part, that triable issues of fact remain as to whether Capelli created a dangerous condition by placing the subject mat on linoleum flooring, and whether it should have affixed tape or adhesive on or towards its edges. In support of her opposition, plaintiff submits, among other things, her affidavit.
At her deposition, plaintiff testified that the accident occurred when she was exiting a beauty parlor known as "Capelli." She further testified that the accident occurred in "[t]he front door area," when '"[her] [right] foot caught the lip of the rug, and the rug lifted up, more or less tripping [her]." Plaintiff clarified that her right foot caught the edge of the rug closest to the back of the store. She further testified that she grabbed the bar across the front door to stop her fall, but was unable to avoid falling to the ground. Plaintiff allegedly was looking forward prior to the accident. While plaintiff testified that she was "not sure" if she observed the edge of the rug that her right foot allegedly got caught underneath prior to the accident, she also testified that she did see that particular edge of the rug before the accident occurred, and that it was not curled up at that time. Plaintiff allegedly had no complaints regarding the subject rug when she entered the salon on the date of the accident. Plaintiff allegedly viewed a video at her deposition. She attested that the video fairly and accurately depicted her accident.
According to plaintiffs deposition testimony, she visited Capelli every six weeks for between 10 and 20 years prior to the incident. Plaintiff allegedly had seen the same rug in the salon for as long as she had been visiting this particular salon. Plaintiff described the rug as being 36 inches long by "[m]aybe 27 inches wide." She testified that she had never seen any sides or corners of the subject rug in a "curled-up position" on prior occasions. When asked whether ''[she] had ever felt the rug slip or move under her feet" on prior occasions, she replied "[m]ay be a tad." She clarified that although she felt it move, she never observed it move. Plaintiff allegedly made no prior complaints regarding the rug.
Hornberger appeared for an examination before trial on behalf of Elpa. He testified that he is a vice president of Elpa, which is a real estate holding company that owned the subject premises. Hornberger described the floor of the subject premises as "vinyl" and "[a] linoleum type of floor." Hornberger allegedly was not aware of any prior accidents or complaints regarding the condition of the floor of the subject premises. Hornberger testified that he never noticed the subject mat.
Lamariana appeared for a deposition on behalf of Capelli. She testified that she is an owner of "Capelli Salon." Capelli Salon allegedly leased the subject premises from Elpa in October of 2017. Lamariana testified that linoleum flooring extended throughout the entire store, and that a floor mat was located inside of the subject premises by the front entrance. When asked to described the floor mat, Lamariana explained that "underneath is rubber and the top is like a rug kind of finish." The subject mat allegedly was rectangular in shape, and had dimensions of approximately 36 inches by 18 inches. When questioned about the height of the subject mat, Lamariana testified that it was "half an inch, quarter of an inch." and described it as "cut kind of flat."
According to Lamariana's deposition testimony, she purchased the subject mat for the salon approximately four months before October 2017, and she subsequently placed double-sided tape diagonally underneath the mat to secure it. No tape allegedly was placed on either end of the subject mat. Lamariana testified that she never replaced the tape underneath the mat. She also testified that she was not aware of prior complaints made by customers or coworkers regarding the subject mat, and that she was not aware of prior trip-and-fall accidents involving this mat. When asked whether "[she] had ever seen the ends of the mat either on [sic] either four corners roll up, begin to curl up" prior to the subject accident, Lamariana responded no. Lamariana further testified that she had never observed the subject mat become raised by an employee walking on it.
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]). To impose liability upon a defendant in a trip-and-fall action, there must be evidence that a dangerous or defective condition existed on the property, and that the defendant either created the condition or had actual or constructive notice of its existence (see Phillips v. LSS Leasing Ltd. Liab. Co., 176 A.D.3d 750, 107 N.Y.S.3d 716 [2d Dept 2019]; Barrett v. New York City Tr. Auth., 176 A.D.3d 909, 111 N.Y.S.3d 615 [2d Dept 2019], Iv denied 35 N.Y.3d 914, 130 N.Y.S.3d 3 [2020]). The issue of whether a dangerous or defective condition exists generally depends on the facts of each case and is a question of fact for the jury to determine (see Rivera v. City of New York, 192 A.D.3d 933, 140 N.Y.S.3d 726 [2d Dept 2021]; Watkins v. Brookdale Univ Hosp. & Med. Ctr.. 189 A.D.3d 933, 133 N.Y.S.3d 452 [2d Dept 2020]). To defeat a defendant's prima facie showing that no dangerous or defective condition existed on its property, a plaintiff must submit evidence, in admissible form, demonstrating the existence of a dangerous condition or defect (see Rojecki v. Genting N. Y., LLC, 176 A.D.3d 992, 112 N.Y.S.3d 243 [2d Dept 2019]; see also Przybyszewski v. Wonder Works Constr., 303 A.D.2d 482, 755 N.Y.S.2d 435 [2d Dept 2003]; Laventure v. McKay, 266 A.D.2d 516. 699 N.Y.S.2d 92 [2d Dept 1999]).
Capelli established its prima facie entitlement to summary judgment dismissing the complaint against it. Capelli's submissions demonstrate, prima facie, that the floor mat allegedly causing plaintiffs fall did not constitute a dangerous or defective condition (see Glosek v. Bella Pizza, 180 A.D.3d 1330, I 15 N.Y.S.3d 729 [4d Dept 2020]; Langgood v. Carrols, LLC, 148 A.D.3d 1734, 50 N.Y.S.3d 733 [4d Dept 2017]; Slattery v. Tops Mkts., 147 A.D.3d 1504, 47 N.Y.S.3d 189 [4d Dept 2017]; Jacobsohn v. New York Hosp., 250 A.D.2d 553, 674 N.Y.S.2d 291 [ 1 st Dept 1998]; cf. Hoppe v. Imperial Towers Assoc, 181 A.D.3d 659, 121 N.Y.S.3d 324 [2d Dept 2020]; Baratta v. Eden Roc NY, LLC, 95 A.D.3d 802, 943 N.Y.S.2d 230 [2d Dept 2012]). Among its submissions, Capelli includes surveillance footage identified by plaintiff as fairly and accurately depicting the subject accident (see Quinones v. 2074 White Plains Road Building, LLC, 180 A.D.3d 721, 115 N.Y.S.3d 705 [2d Dept 2020]; DiStefano v. Ulta Salon, 95 A.D.3d 932, 943 N.Y.S.2d 618 [2d Dept 2012]). Significantly, the surveillance footage shows that the subject mat initially was flush to the floor, and that plaintiffs foot picked up its edge. Based on the record, plaintiff fell because her foot picked up the edge of the mat, and not because of a defect or irregularly in the mat (see Langgood v. Carrols, LLC, supra; Slattery v. Tops Mkts., supra; Jacobsohn v. New York Hosp., supra). Moreover, Lamariana's testimony indicates that she had never previously seen the edges of the subject mat begin to curl up, and that she was unaware of prior complaints or trip-and-fall accidents involving the subject mat. Plaintiff also testified that she had never observed the sides or corners of the subject mat in a curled position on her previous visits to the subject salon. As Capelli met its prima facie burden on the motion, the burden then shifted to plaintiff to raise a triable issue of fact (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]).
In opposition to Capelli's prima facie showing, plaintiff failed to submit evidence sufficient to raise a triable issue of fact (see Leib v. Silo Rest., 26 A.D.3d 359, 809 N.Y.S.2d 185 [2d Dept 2006]; Jacobsohn v. New York Hosp., supra; see generally Alvarez v. Prospect Hosp., supra). Plaintiffs averment that the rug was not flush to the floor, without additional evidence, is insufficient to raise a triable issue of fact as to whether there was an appreciable ripple or other height differential present in the subject mat constituting a dangerous condition (see Langgood v. Carrots, LLC, supra; see also Kwitny v. Westchester Towers Owners Corp., 47 A.D.3d 495, 850 N.Y.S.2d 68 [1st Dept 2008]). Inasmuch as plaintiff contends that her deposition testimony is internally inconsistent, it is insufficient to create a triable issue of fact to defeat summary judgment in favor of Capelli, particularly in light of the surveillance footage submitted Capelli. Moreover, no triable issue is raised by the fact that the edges of the subject mat were not affixed to the floor with tape or adhesive (see Jacobsohn v. New York Hosp., supra). Further, plaintiffs affidavit is also insufficient to raise a triable issue of fact. By her affidavit, plaintiff, in relevant part, describes the subject mat as "flimsy"' and"lightweight," and the floor as "shiny." She avers that "from all of other times that [she] observed the indoor mat it has not remained in the same place," and that it "moved or shifted around." Plaintiff elaborates that she noticed that the subject mat was not situated in the same location on two prior occasions. While she avers that she observed that the subject mat was "not centered" and "not parallel with the threshold of the front door" on the date of the accident, she attests that "[a]s the front of [her] right foot came into contact with the lip of the indoor mat, the mat curled up and folded over," and "[b]ecause the mat curled up and folded over it caused [her] right foot to become caught into the mat which in turn caused [her] to lose [her] balance and [she] fell forward." To the extent that plaintiff attributes her accident to the purported movement or shifting of the subject mat, such arguments fail, since she failed to offer evidence that its alleged movement or malposition caused or contributed to her accident. The Court finds plaintiffs remaining arguments in opposition to Capelli's motion unavailing. In light of the foregoing, Capelli's application to dismiss the cross claims against it is denied, as moot.
Accordingly, the motion by defendant Capelli for summary judgment dismissing the complaint and cross claims against it is granted in part and denied in part.