Opinion
Index No. 610642/19 Motion Seq. No. 05
02-08-2022
JANICE JUNGER and OSWALD JUNGER, Plaintiffs, v. COUNTY OF NASSAU, TOWN OF HEMPSTEAD, PANRAD AUTOMOTIVE INDUSTRIES INC., GARDINERS PROPERTY HOLDINGS LLC and H & A LANDSCAPE OF LONG ISLAND INC., Defendants.
Unpublished Opinion
Motion Date: 10/15/2021
SHORT FORM ORDER
HON. DENISE L. SHER, ACTING SUPREME COURT JUSTICE
The following papers have been read on this motion:
Papers Numbered
Notice of Motion, Affirmation and Exhibits, and Statement of Material Facts
Affirmation in Opposition and Exhibits, and Response to Statement of Material Facts and Counter Statement of Material Facts
Reply Affirmation
Upon the foregoing papers, it is ordered that the motion is decided as follows:
Defendant Panrad Automotive Industries Inc. ("Panrad") moves (Seq. No. 05), pursuant to CPLR § 3212, for an order granting summary judgment dismissing plaintiffs' Amended Verified Complaint as against it. Plaintiffs oppose the motion.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff Janice Junger on April 1, 2019, at approximately 3:30 p.m., when she was caused to trip and fall due to an uneven, broken, cracked, chipped and/or depressed condition on the sidewalk located at 180 Gardiner Avenue, Levittown, County of Nassau, State of New York. Defendant Panrad is the owner of the subject premises, which is leased to the United States Postal Service. The action was commenced with the filing and service of a Summons and Verified Complaint on or about August 5, 2019. See Defendant Panrad's Affirmation in Support Exhibit A. Issue was joined by defendant Panrad on or about November 6, 2019, See Defendant Panrad's Affirmation in Support Exhibit D.
In support of the motion (Seq. No. 05), counsel for defendant Panrad submits, in pertinent part, that, "[o]n August 11, 2021 Panrad served a Notice to Admit to the Town of Hempstead, asking the Town to admit: 1) That the document annexed hereto as Exhibit A is a true and correct copy of the inspection report prepared by the Town of Hempstead with regard to the sidewalk area in front of the Levittown Post Office locate at 180 Gardiners Avenue, Levittown, New York; 2) That the Town of Hempstead conducted the aforementioned inspection in June of 2019, and that the inspection report was prepared contemporaneously with the inspection; 3) That the Town of Hempstead did not find a sidewalk defect with regard to the sidewalk area in front of the Levittown Post Office locate at 180 Gardiners Avenue, Levittown, New York, other than a tree that was missing at a tree well located in said sidewalk; 4) That the Town of Hempstead conducted a computer search for any complaints with regard to the sidewalk area in front of the Levittown Post Office locate at 180 Gardiners Avenue, Levittown, New York for a period of 5 years prior to and including the date of accident, April 1, 2019 and did not locate any such complaints; and 5) That the Town of Hempstead did not provide or issue any notice, written or otherwise, of a defective condition with regard to the sidewalk area in front of the Levittown Post Office locate at 180 Gardiners Avenue, Levittown, New York, to the defendant PANRAD AUTOMOTIVE INDUSTRIES INC. at any time within the five year period prior to April 1, 2019.... The Town of Hempstead responded on August 27, 2021 admitting the truth of the above statements." See Defendant Panrad's Affirmation in Support Exhibits L and M, In further support of the motion (Seq. No. 05), counsel for defendant Panrad submits the transcript of plaintiff Janice Junger's Examination Before Trial ("EBT") testimony. See Defendant Panrad's Affirmation in Support Exhibit N. Counsel asserts that plaintiff Janice Junger testified, in pertinent part, that her "accident occurred on April 1, 2019 at approximately 3:30 PM.... She had parked her car in front of the post office in the street.... She got out of the car and walked across the sidewalk and into the door of the post office.... Her husband stayed in the car.... After approximately 5 minutes she left the post office and was intending to walk to her car and drive home.... She was almost to the curb when she fell.... She does not recall which foot initially got caught when she fell.... She was looking at her car and looking straight ahead and not looking down immediately before she fell.... After she fell, all that she saw was the tarmac or the road.... She testified that if felt like a defect in the paver that caught on the front of her sneaker.... When she was shown a picture of the sidewalk and the brick pavers in front of the post office, she was asked if it was a picture of the place where she tripped, and she responded that she 'couldn't say for sure because I was looking at my car.' ... Plaintiff was questioned about the description of the alleged defect in the Notice of Claim, which said that her fall was a result of uneven, broken, cracked, chipped, and/or defective sidewalk. She was asked which of those conditions caused her to fall, and she responded 'I just know that my sneaker toe or the front of my sneaker got caught in something on the sidewalk. I can't tell you which it was but it got caught in something.' ... Plaintiff did not take any photos of the area of the accident on the day of the accident.... Neither did anyone else.... Plaintiff was not present when anyone else took any photographs.... Plaintiff had not been to that post office for several years prior to the accident date.... She did not make any complaints to anyone about the sidewalk in front of the post office prior to the accident date." See id.
Also in support of the motion (Seq. No. 05), counsel for defendant Panrad submits the transcript of plaintiff Oswald Junger's EBT testimony. See Defendant Panrad's Affirmation in Support Exhibit O. Counsel asserts that plaintiff Oswald Junger testified, in pertinent part, that, "[h]e was sitting in the driver's seat of the vehicle as his wife came out of the post office.... He saw his wife trip and fall.... She fell on the passenger side of the car and he lost sight of her when she fell below the passenger side window.... He exited the vehicle on the driver's side and walked around the back of the car to check on his wife.... He did not see what she tripped over because he was not looking at that but instead at his wife.... He returned a few days later and saw that 'there were tiles missing or lower.' ... He believes that this is what caused his wife to trip because 'it is in the area of where she was when she started tripping.'" See id.
Also in support of the motion (Seq. No. 05), counsel for defendant Panrad submits the transcript from the EBT of Julia Maglione ("Maglione"), who was deposed on behalf of defendant Panrad. See Defendant Panrad's Affirmation in Support Exhibit Q. Counsel asserts that Maglione testified, in pertinent part, that, "[s]he is the daughter of the former owner of the corporation.... She had worked with her father for the past 10 years regarding legal issues that came up as well as general maintenance of the premises.... Panrad is the owner of the shopping center on Gardiners Avenue in Levittown which includes the subject post office building.... In April of 2019 Panrad employed a handyman who would work with her father and her regarding managing the shopping center.... The handyman left in February or March of 2020 when he moved to Florida.... Ms. Maglione would help her father with legal issues, such as leasing or non-payment issues, and would take her elderly father to the premises and walk around with him and help him.... The United States Postal Service leases the subject building from Panrad and has for a number of years.... The Post Office is very active in their attention to the physical condition of the property.... If the Post Office had made any complaints Ms. Maglione would have become aware of them.... Ms. Maglione was not aware of any complaints regarding the sidewalk in front of the post office at Gardiner's Avenue in 2018 or 2019.... The handyman would walk around the shopping center including the post office and look for potholes, broken sidewalks, and would report to her father and her if he found any issues.... The handyman never informed her of any issues with the sidewalk in front of the post office.... Her father never told her that the handyman had informed him of any problems with the sidewalk in front of the post office.... She never notice any problems with the sidewalk in front of the post office on her numerous visits to the site.... The post office never made any complaints regarding the sidewalk in front of the post office.... Neither the County of Nass nor the Town of Hempstead ever sent any written correspondence to Panrad with regard to any repairs needed to the sidewalk in front of the subject post office." See id.
Counsel for defendant Panrad argues, in pertinent part, that, "[defendant, established its prima facie entitlement to judgment as a matter of law dismissing the Complaint by demonstrating that Plaintiff cannot show what caused her to fall without engaging in impermissible speculation. Plaintiff testified at an Examination Before Trial, that she did not know which foot initially got caught when she tripped, did not know what caused her to trip, never saw what allegedly caused her to trip, and never went back to see what may have caused her to trip.... Plaintiff did not take any photos of the alleged defect, and neither did anyone else on the day of the accident. Plaintiff was not present when any photographs were taken of the alleged defect.... Plaintiffs husband testified at an Examination Before Trial that he did not see what she tripped over because he was looking at his wife and not the ground. He returned to the location a few days later and noticed 'that there were tiles missing or lower.' He believes that this is what caused his wife to trip because it is in the area of where she was when she tripped.... Thus Plaintiffs are engaging in mere speculation as to the cause of Plaintiff s fall based upon a site visit made several days after the accident by Mr. Junger when his wife was not even present. As plaintiff cannot identify the cause of her fall, the case must be dismissed. The burden is with Plaintiff to show not only a defect existing from the defendant's negligence, but that, by reason of that alone, without fault or negligence on the part of the plaintiff, the injury was occasioned. Plaintiff cannot establish by direct proof that the injury resulted from a dangerous condition on the sidewalk of the subject premises as the Plaintiff is engaging in mere speculation regarding the cause of her fall." See Defendant Panrad's Affirmation in Support Exhibits N and O.
Counsel for defendant Panrad further contends, in pertinent part, that, "[i]f the Court should find that there was a dangerous condition that caused plaintiff to trip and fall, there is absolutely no evidence that Defendant created the condition or had actual or constructive notice of said condition. Additionally, there is no evidence to support any conclusion that Defendant was negligent in the operation, control, maintenance, ownership, and/or management of the subject premises. Plaintiffs alleged injury was allegedly caused by tripping due to a recessed or missing sidewalk paver. There is absolutely no evidence to support the fact that Defendants were in any way negligent and/or that such negligence was a substantial factor in bringing about the injury. Accordingly, Defendants are entitled to summary judgment dismissing plaintiffs (sic) complaint. The claims against Panrad are based upon negligence. The duty owed by Panrad, or any property owner, is that of reasonable care under the circumstances, [citation omitted]. However, the mere fact that an incident occurred does not establish liability.....Here, Plaintiff could not identify what caused her to fall, and neither could her husband. Furthermore, post-accident attempts to return the site and attempt to identify the alleged defect have been rejected by the Appellate Division, Second Department.... Notice of the condition, either actual or constructive, is essential to liability. A defendant is not liable for injuries sustained due to a defect on the premises unless the defendant had actual or constructive notice thereof for such a reasonable period of time, that in the exercise of reasonable care, one could have corrected it. [citations omitted]. To establish actual notice, defendant must be aware of the dangerous or defective condition for a reasonable period of time so as to provide him or her with personal knowledge of the condition and time to remedy said condition.... Actual notice may be found when the defendant created the condition or was aware of its existence, [citation omitted]. In the case at bar, there is no testimony or records showing that defendants created the alleged condition. Plaintiff specifically testified that she did not see any condition on the sidewalk even after she fell. She also had no problem walking on the sidewalk on the way in to the post office. She also testified that she did not make any complaints regarding the condition of the sidewalk prior to her accident. There is also no testimony that the defendant was aware of anything wrong with the sidewalk that could have made the plaintiff fall. Defendant testified that numerous people including the post office workers frequently inspected the area and if there was a dangerous condition present it would be corrected. It is incumbent upon the plaintiff to demonstrate the 'identity of the persons to whom notice of the condition was allegedly given and when and how it was given.' [citation omitted]. Further, it is well established in this Court that, '[m]ere allegations of notice contained in plaintiffs pleadings are not sufficient to defeat a motion for summary judgment.' [citation omitted]. In the case at bar, plaintiff was unable to identify a condition and there is no evidence as to any complaints. Given the above, the facts show that defendant did not cause or create or have actual notice of a condition at the subject premises which was alleged to be the proximate cause of plaintiff s fall. Thus, plaintiffs (sic) claims under a theory of creating or having actual notice of said defective condition must fail as a matter of law. When there is no indication that the defendant created the dangerous condition or had actual notice of it, plaintiff must establish constructive notice.... Defendant testified that the sidewalk was routinely checked and would promptly repair anything that needed repair. The plaintiff was unable to say what caused her to fall. If there was a condition with the sidewalk, plaintiff did not even see it when she walked into the post office mere minutes prior to the accident. The plaintiff herself never made any complaints to the defendant regarding any condition with the sidewalk prior to her accident. Having failed to demonstrate that Defendants (sic) had actual or constructive notice of an alleged defective condition, plaintiff was not able to demonstrate that Defendant had a reasonable opportunity to remedy the alleged defective condition. Therefore, based solely upon plaintiffs deposition testimony, this Court should dismiss plaintiffs (sic) complaint.... Here, any contention that the condition that was alleged to have caused plaintiffs accident existed for any period of time prior to the accident so as to provide actual or constructive notice, and any contention that Defendants (sic) created the condition, is speculative.” See id.
In opposition to the motion (Seq. No. 05), counsel for plaintiffs argues, in pertinent part, that, "[f]here are two grounds by which defendant wishes to be dismissed from the case: that plaintiff (allegedly) does not know what she fell on, and that plaintiff (allegedly) cannot demonstrate that defendant had notice of the subject defect. Both of these arguments are misguided; in fact, not only has plaintiff demonstrated both of these things, but defendant has failed to even sustain their (sic) initial burden as movant for summary judgment of showing that either applies. Defendant's motion is baseless, and completely fails to account for the following clear testimony of Janice Junger: ... Q Do you know what caused you to 6 fall? A My foot caught. The front of my sneaker caught in something on the ground. Q Do you know if it was a crack or a defect or what it was that your foot got caught in? A It was -- what do you call it, a crack. A big crack. It was a defect in the paver that caught on the front of my sneaker. Q How do you know that? A That's what it felt like. This is clear and unambiguous testimony that Janice Junger fell as a result of her foot being caught in a big crack. While defense counsel will instead point to later testimony of Janice Junger to show that she does not know what she fell on, such exercise fails to understand what transpired in context. When asked what caused her to fall, Janice Junger gave direct testimony regarding a big crack that caught her sneaker.... That, alone, is the classic question and answer that requires that this case survive summary judgment. Later, when asked about specific terms that can be used to describe such a defect in her notice of claim (as to the County and Town), which reads 'uneven, broken, cracked, chipped, and/or defect sidewalk', Janice Junger said she could not be more specific ..., but her unambiguous and direct testimony from page 17 still stands. In fact, the questioning on page 21 was objected to as the question presumed that 'uneven, broken, cracked, chipped, and/or defect sidewalk' are all different things. Thus, asking 'Do you know which of those it was' is a misleading question, as a 'big crack' is arguably all of those things. It is therefore a small wonder that Janice Junger replied T can't tell you which it was'.... In any event, none of this questioning can remove her prior direct testimony regarding what caused her to fall. Back on page 17 Janice Junger was even pressed on how she knows what she fell on if she did not see it. In response, she soundly explained that she knows because that is 'what it felt like'.... The instant motion wants the Court to think that seeing a defect is the only way you can know about a defect. However, individuals who are blind, and those who for whatever reason do not get an opportunity to see a defect, can testify based on what they felt. Janice Junger was there. She was walking. She felt her foot get caught in a big crack. It is beyond explanation how such testimony could possibly lead to a summary judgment dismissal against her. Indeed, if this deposition testimony alone is not enough to defeat this motion, then half the cases in the courthouse would have to be dismissed. She says what it was and says how she knows it, the rest is a matter of credibility for trial, that is it. The law is clear that discrepancies in sworn testimony only raises credibility issues, which may not be summarily dismissed on a summary judgment motion, [citations omitted]. Not that she should need it, but Plaintiff has even more proof of what she fell on. Not only does Janice Junger know what caused her to fall, her husband, Oswald Junger, does too. Mr. Junger was an eyewitness to his wife's fall... and testified that at the time she fell he did not see what caused her to fall.... However, he testified that a few days later he returned to the site and saw 'tiles missing or lower'.... Mr. Oswald explains further in his affidavit how he knows that the defect he saw is what his wife tripped on. This affidavit is fully consistent with his deposition, and merely gives additional explanation to matters he was not asked. His testimony is direct: he saw where she fell, and while he did not immediately see what defect was there, just a couple days later he examined that exact spot. He explains ..... 3. I saw Janice fall, and saw where she was on the sidewalk when she fell. When I came closer to help Janice right after her fall, however, I was not looking closely at the area she tripped on since I was focusing on Janice. 4. About two or three days after her fall, I returned to the location where Janice fell. When I looked where I saw her foot was when she started tripping, I saw that there was a clear sidewalk defect. Specifically, the defect was a large crack formed from an entire paver which was missing from the sidewalk surface (or significantly lower than the rest), creating a hole. There were no other defects in the vicinity, and this one was right where her foot was when she started to fall. It is therefore clear to me that this defect is what caused her to fall. Mr. Junger saw his wife fall, he saw where exactly she was when she fell, and just a couple days after she fell, he saw a defect at that exact location.... Defense counsel will argue that what he saw when he came back two or three days later should not count, but counsel fails to appreciate that Mr. Junger did not go back there to fish around for a defect. He already knew exactly where his wife was when she began falling, so all he had to do was look in that particular spot and see what was there. Additionally, his testimony works perfectly in tandem with what Janice Junger has testified to: having her foot caught in a big crack.... Plus, Mr. Junger was not going back to check on a transient defect, but discovered a missing/lower tile, not something that blows in the wind and could be expected to have moved in 2-3 days.... Finally, the testimony of Janice Junger and Oswald Junger are each, individually, adequate to demonstrate what caused the fall. Janice Junger felt it, and Oswald Junger saw it. Each, alone, is enough to show this basic element of the case. However, in conjunction, each of the two evidentiary bases are even stronger, and add additional credence to their counterpart. Therefore, there is testimony in this record that both plaintiffs know what caused Janice Junger to fall. Given this record, none of which in any way is contradicted by plaintiffs (sic) depositions, there are triable issues of fact regarding the cause of Janice Junger's fall. Summary dismissal cannot even be considered on a record like this. Here, we have direct testimony from the person that actually fell, who could physically feel what the defect was, and an eyewitness who observed the defect with his own eyes just days later. This is far more evidence than was needed, as even just an 'inference from the circumstances' would suffice, [citation omitted]. We have that and much more here. This motion simply cannot be granted.'* See Plaintiffs' Affirmation in Opposition Exhibits A-C.
Counsel for plaintiffs further contends, in pertinent part, that, "[d]efendant next alleges that plaintiff cannot prove notice. However, as defendant is the one moving for summary judgment, plaintiff need only demonstrate notice after defendant has demonstrated a lack of notice. Caselaw demonstrates that in order to prove a lack of notice on a summary judgment motion, it is defendant-movant's burden to demonstrate when the subject area was last inspected before the accident and that no hazardous condition was found, that way it can be shown that defendant could not have known about the defect in time to repair it. As will be discussed below, no such inspections are evidenced in any way in this motion.... The record herein does not evidence a single inspection prior to the occurrence. Here, the witness for Panrad is Julia Maglione, the daughter of the principal of Panrad who is a landlord and tenant attorney. No one else testified who knew anything about maintenance/inspections of the sidewalk outside the post office. This testimony is therefore critical to this motion. Some things she did not know if they were done, and others she knew they were not done. Neither helps defendant meet their burden on summary judgment; just the opposite. These facts are divided below: A. Things Julia Maglione Did Not Know if Ever Done - If Panrad's independent contractor handyman, Carlos Garcia, would ever do anything with any of the sidewalks at the shopping center.... - If anyone inspected the sidewalk outside any of the buildings in the shopping center between January and April, 2019.... - If at any time when she was walking around the subject post office she was actively looking to see if there were any problems with the sidewalk.... - If Carlos Garcia had a regimen for inspecting the shopping area, ... - When before April 1, 2019, Carlos Garcia was last at the shopping center.... - When before April 1, 2019, she was last at the shopping center.... B. Things Julia Maglione Knew Were Never Done - Before April 1, 2019, PANRAD never hired anyone to perform any inspections of the sidewalk outside of the post office in the shopping center.... - Before April 1, 2019, PANRAD AUTOMOTIVE INDUSTRIES INC. never asked its handyman, Carlos Garcia, to perform any inspections of the sidewalk outside of the post office in the shopping center.... - In the year prior to April 1, 2019. no one had any responsibilities with regard to the sidewalks outside of the shopping center.... - Julia Maglione never asked the postmaster of the subject post office if he ever received any complaints regarding the sidewalk before April 1, 2019.... - Carlos Garcia did not perform inspections on some sort of a basis of the sidewalks in the shopping center before April 1, 2019.... On such facts, defendant has not even come close to sustaining their initial burden on notice, nor did they show they did not create the defect, which itself is a basis to deny the motion. While defendant tries alleging (without any basis, as explained at length above) that there were general customs and practice when it came to inspecting/repairing the subject sidewalk, 'general inspection practices' are inadequate to meet their burden as movant for summary judgment.[citations omitted]." See Plaintiffs' Affirmation in Opposition Exhibit D.
It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. See Sill man v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957); Alvarez v. Prospect Hospital 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980); Bhatti v. Roche, 140 A.D.2d 660, 528 N.Y.S.2d 1020 (2d Dept. 1988). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant's favor. See Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 (1979). Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation. See CPLR § 3212 (b); Olan v. Farrell Lines Inc., 64 N.Y.2d 1092, 489 N.Y.S.2d 884 (1985).
If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. See Zuckerman v. City of New York, supra. When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist. See Sillman v. Twentieth Century-Fox Film Corp., supra. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. See Gilbert Frank Corp v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793 (1988).
Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. See Barr v. Albany County, 50 N.Y.2d 247, 428 N.Y.S.2d 665 (1980); Daliendo v. Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987 (2d Dept 1989).
Summary judgment is a drastic remedy which should not be granted when there is any doubt about the existence of a triable issue of fact. See Sillman v. Twentieth Century-Fox Film Corp., supra. It is nevertheless an appropriate tool to weed out meritless claims. See Lewis v. Desmond, 187 A.D.2d 797, 589 N.Y.S.2d 678 (3d Dept. 1992); Gray v. Bankers Trust Co. of Albany, N.A., 82 A.D.2d 168, 442 N.Y.S.2d 610 (3d Dept. 1981).
An owner of property has a duty to maintain the property in a reasonably safe condition. See Kellman v. 45 Tieman Assoc, 87 N.Y.2d 871, 638 N.Y.S.2d 937 (1995); Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564 (1976); Kruger v. Donzelli Realty Corp., 111 A.D.3d 897, 975 N.Y.S.2d 689 (2d Dept. 2013).
In order for plaintiffs to make a prima facie case of negligence, they must establish the existence of a dangerous or defective condition in the first instance. See Pillato v. Diamond, 209 A.D.2d 393, 618 N.Y.S.2d 446 (2d Dept. 1994). Plaintiffs must also demonstrate that defendant Panrad's negligence was a substantial cause of the incident. See Howard v. Poseidon Pools, Inc., 72 N.Y.2d 972, 534 N.Y.S.2d 360 (1988).
In a trip and fall case, a plaintiffs inability to identify the cause of his or her fall is fatal to his or her cause of action, since, in that instance, the trier of fact would be required to base the finding of proximate cause upon nothing more than speculation. See Blocker v. Filene's Basement #51-00540, 126 A.D.3d 744, 5 N.Y.S.3d 265 (2d Dept. 2015).
Based upon a reading of plaintiff Janice Junger's full EBT testimony, the Court does not find that plaintiff Janice Junger had an inability to identify the cause of her fall. As argued by counsel for plaintiffs, plaintiff Janice Junger did in fact testify as to what she believed caused her fall. See Plaintiffs' Affirmation in Opposition Exhibit C.
Furthermore, the credibility of witnesses, the reconciliation of conflicting statements, a determination of which should be accepted and which rejected, the truthfulness and accuracy of the testimony, whether contradictory or not, are issues for the trier of the facts. See Lelekakis v. Kamamis, 41 A.D.3d 662, 839 N.Y.S.2d 773 (2d Dept. 2007); Pedone v. B&B Equipment Co., Inc., 239 A.D.2d 397, 662 N.Y.S.2d 766 (2d Dept. 1997).
"To impose liability upon a defendant in a trip-and-fall action, there must be evidence that a dangerous or defective condition existed, and that the defendant either created the condition or had actual or constructive notice of it." See Leary v. Leisure Glen Home Owners Ass'n, Inc., 82 A.D.3d 1169, 920 N.Y.S.2d 193 (2d Dept. 2011); Alami v. 215 East 68th Street, LP, 88 A.D.3d 924, 931 N.Y.S.2d 647 (2d Dept. 2011); Williams v. SNS Realty of Long Island. Inc., 70 A.D.3d 1034, 895 N.Y.S.2d 528 (2d Dept, 2010); Hoyden v. Waldbaum, Inc., 63 A.D.3d 679, 880 N.Y.S.2d 351 (2d Dept. 2009); Dennehy-Murphy v. Nor-Topia Serv. Center, Inc., 61 A.D.3d 629, 876 N.Y.S.2d 512 (2d Dept. 2009). See also Denker v. Century 21 Dept Stores, LLC, 55 A.D.3d 527, 866 N.Y.S.2d 681 (2d Dept. 2008); Rubin v. Cryder House, 39 A.D.3d 840, 834 N.Y.S.2d 316 (2d Dept. 2007). "A defendant has constructive notice of a defect when the defect is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected.''' Dennehy-Murphy v. Nor-Topia Serv. Center, Inc., supra; Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646 (1986); Nelson v. Cunningham Associates, L.P., 77 A.D.3d 638, 908 N.Y.S.2d 713 (2d Dept. 2010); Cusack v. Peter Luger, Inc., 77 A.D.3d 785, 909 N.Y.S.2d 532 (2d Dept. 2010); Rabadi v. Atlantic & Pacific Tea Company Inc., 268 A.D.2d 418, 702 N.Y.S.2d 316 (2d Dept. 2000); Gauzza v. GBR Two Crossfield Ave. LLC, 133 A.D.3d 710, 20 N.Y.S.3d 147 (2d Dept. 2015); Gebert v. Catalano, 110 A.D.3d 951, 973 N.Y.S.2d 332 (2d Dept. 2013). See also Minor v. 1265 Morrison, LLC, 96 A.D.3d 1024, 947 N.Y.S.2d 167 (2d Dept. 2012); Shane v. Costco Wholesale Corp., 49 A.D.3d 522, 855 N.Y.S.2d 155 (2d Dept. 2008).
To demonstrate entitlement to summary judgment in a slip and fall case, a defendant must establish, prima facie, that it maintained the premises in a reasonably safe manner and that it neither created the alleged dangerous condition, nor had either actual or constructive notice of that condition for a sufficient length of time prior to the incident to discover and remedy it. See Gomez v. David Milkin Residence Hous. Dev. Fund Co., Inc., 85 A.D.3d 1112, 927 N.Y.S.2d (2d Dept. 2011).
Once the defendant has met this burden, the burden shifts to plaintiffs to raise a factual issue as to the creation of the defect or notice thereof sufficient to require a trial of their claims. See Smith v. Costco Wholesale Corp., 50 A.D.3d 499, 856 N.Y.S.2d 573 (1st Dept. 2008); Zuckerman v. City of New York, supra.
Whether a dangerous or defective condition exists on the property so as to give rise to liability depends on the circumstances of each case and is generally a question of fact for the jury. See Surujnaraine v. Valley Stream Cent. High School Dist., 88 A.D.3d 866, 931 N.Y.S.2d 119 (2d Dept. 2011); Katz v. Westchester County Healthcare Corp., 82 A.D.3d 712, 917 N.Y.S.2d 896 (2d Dept. 2011); Perez v. 655 Montauk, LLC, 81 A.D.3d 619, 916 N.Y.S.2d 137 (2d Dept. 2011); Sabino v. 745 64th Realty Associates, LLC, 77 A.D.3d 722, 909 N.Y.S.2d 482 (2d Dept. 2010); Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615 (1997).
Based upon the evidence and legal arguments presented in the papers before it, the Court finds that defendant Panrad has failed to establish, prima facie, that it did not have actual or constructive notice of the condition alleged to have caused plaintiff Janice Junger's fall. The Court finds that there is an issue of fact as to when, if any, inspections of the subject area took place prior to plaintiff Janice Junger's accident. Defendant Panrad failed to submit any maintenance records to substantiate the testimony of its witness, Julia Maglione, as to the alleged inspections of the subject sidewalk area. See Plaintiffs' Affirmation in Opposition Exhibit D; Sohi v. Costco Wholesale Corp., 144 A.D. 1130, 41 N.Y.S.3d 757 (2d Dept. 2016); Morahan-Glick v. Costco Wholesale Corp., 116 A.D.3d 747, 982 N.Y.S.2d 897 (2d Dept. 2014).
Viewing the evidence in the light most favorable to plaintiffs (see Taylor v. Rochdale Village Inc., 60 A.D.3d 930, 875 N.Y.S.2d 561 (2d Dept. 2009); Judice v. DeAngelo, 272 A.D.2d 583, 709 N.Y.S.2d 427 (2d Dept. 2000); Robinson v. Strong Memorial Hosp., 98 A.D.2d 976, 470 N.Y.S.2d 2398 (4th Dept. 1983)), the Court finds that there are material triable issues of fact with respect to defendant Panrad's liability in the subject incident.
Therefore, based upon the above, defendant Panrad's motion (Seq. No. 05), pursuant to CPLR § 3212, for an order granting summary judgment dismissing plaintiffs' Amended Verified Complaint as against it, is hereby DENIED.
This constitutes the Decision and Order of this Court.