Opinion
Index 600128/2018
10-22-2020
MICHELLE NITA. Plaintiff, v. GOOD SAMARITAN HOSPITAL MEDICAL CENTER, d/b/a GOOD SAMARITAN THRIFT SHOP, Defendant. CAL. No. 201902150OT
LAW OFFICE OF MITCHELL J. RICH Attorney for Plaintiff BARBIERO, BISCH & O'CONNOR, LLP Attorney for Defendant
Unpublished Opinion
LAW OFFICE OF MITCHELL J. RICH Attorney for Plaintiff
BARBIERO, BISCH & O'CONNOR, LLP Attorney for Defendant
PRESENT: Hon. JOSEPH FARNETI Acting Justice of the Supreme Court
Joseph Farneti Judge
Upon the following papers read on this e-filed motion for summary judgment: otice of Motion/ Order to Show Cause and supporting papers by defendant. filed March 2. 2020; Notice of Cross Motion and supporting papers_; Answering Affidavits and supporting papers by plaintiff. filed March 11. 2020; Replying Affidavits and supporting papers by defendant. filed July l, 2020; Other_; it is, ORDERED that the motion by defendant Good Samaritan Hospital Medical Center, d/b/a Good Samaritan Thrift Shop, for summary judgment dismissing the complaint is denied.
Plaintiff Michelle Nita commenced this action to recover for personal injuries she allegedly sustained when a clothing rack fell toward her at the commercial premises known as Good Samaritan Thrift Shop, located at 179 Deer Park Avenue in Babylon, New York, on July 31, 2017. The subject premises allegedly was operated by defendant Good Samaritan Hospital Medical Center, d/b/a Good Samaritan Thrift Shop, at the time of the subject accident. Plaintiff alleges that defendant was negligent in, among other things, permitting a dangerous condition to exist, namely a clothing rack, and failing to properly maintain and inspect the subject premises.
Defendant now moves for summary judgment dismissing the complaint. It argues, among other things, that no defective or dangerous condition existed on the subject premises, and that it neither created the alleged dangerous or defective condition nor had actual or constructive notice of its existence. Defendant also contends that plaintiff is unable to identify the cause of her accident without engaging in speculation. In support of its motion, defendant submits, among other things, the transcripts of the deposition testimony of plaintiff and Reissa Preston, and the affidavit of Reissa Preston. In opposition. plaintiff argues, in part, that defendant's motion is untimely, and that triable issues of fact remain as to the sufficiency of defendant's inspections of the subject premises. In support of her opposition, plaintiff submits, among other things, the affirmation of her attorney.
At plaintiffs deposition, she testified that she was standing, facing the subject clothing rack, when it fell toward her. Clothes allegedly were hanging from the subject clothing rack at the time of the accident. Plaintiff stated that she was not touching the subject clothing rack before it fell toward her. When asked if there was anyone else near the subject clothing rack at the time that it struck her, plaintiff stated that she believed that there was a woman present. She clarified that the woman was not facing her at that time. Plaintiff explained that she caught the cross bar of the subject clothing rack with her left hand, but she was unable to prevent clothing rack from landing on her. The subject clothing rack allegedly never fell to the floor. Plaintiff testified that she visited the subject premises on a weekly basis for the year preceding the accident, and that she had made no prior complaints regarding the store.
At Preston's deposition, she testified that she has volunteered as a cashier at Good Samaritan Thrift Shop since approximately 2015. Preston allegedly volunteered at the subject premises two times per week in July of 2017. Preston further testified that she was on the premises at the time of the accident, but she did not witness the accident. According to her deposition testimony, after hearing a crash, she observed that a clothing rack was on top of plaintiff, and that plaintiff was on the floor. The subject clothing rack allegedly was located in the men's department and had at least four metal feet. Preston allegedly did not recall how many of those feet were and were not in contact with the floor after the accident.
In her affidavit, Preston states that she has served as a volunteer cashier at Good Samaritan Thrift Shop since approximately 2015. She explains that volunteers and employees perform daily opening and closing inspections, which include inspecting all clothing racks. She avers that no employee observed any defects with regard to the clothing racks, and that no employee received any complaints regarding the same. The clothing racks allegedly were in the same condition and were placed in the same manner for years prior to the subject accident.
As an initial matter, CPLR 3212 (a) provides, in pertinent part, that if no date for making a summary judgment motion has been set by the court, such a motion "shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown'* (see Miceli v State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725, 786 N.Y.S.2d 379 [2004]; Brill v City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261 [2004]; Wells Fargo Bank, NA v Apt, 179 A.D.3d 1145, 118 N.Y.S.3d 155 [2d Dept 2020]). The note of issue was filed by plaintiff on November 1, 2019. The parties do not dispute that 120 days from November 1, 2019, was February 29, 2020, which was a Saturday. Pursuant to General Construction Law § 25-a (1), when a period of time within which an act is required to be performed ends on a Saturday, "such act may be done on the next succeeding business day." Thus, defendant's motion for summary judgment was timely, as it was filed on the next business day, Monday, March 2, 2020.
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 Keilman v 45 Tiemann Assoc, 87 N.Y.2d 871, 638 N.Y.S.2d 937 [1995]; Bishop v Pennsylvania Ave. Mgt., LLC, 183 A.D.3d 685, 123 N.Y.S.3d 685 [2d Dept 2020]; Kelly v Roy C. Ketcham High Sch., 179 A.D.3d 653, 113 N.Y.S.3d 572 [2d Dept 2020]). In general, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question for the jury to resolve (see Trincere v County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615 [1997]; Calderon v Cruzate. 175 A.D.3d 644, 107 N.Y.S.3d 399 [2d Dept 2019]; Poliziani v Culinary' Inst. of Am, 167 A.D.3d 790, 89 N.Y.S.3d 272 [2d Dept 2018]). In a premises liability action, a defendant property owner, or a party in possession or control of real property, moving for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied it (see Kelly v Roy C. Ketcham High Sch., supra; Williams v Island Trees Union Free Sch. Dist.All A.D.3d 936, 114 N.Y.S.3d 118 [2d Dept 2019]; Chang v Marmon Enterprises, Inc.. 172 A.D.3d 678, 99 N.Y.S.3d 397 [2d Dept 2019]). Reference to general cleaning and inspection practices in the absence of evidence of specific cleaning or inspection of the subject area is insufficient to establish a lack of constructive notice (see Saporito-Elliott v United Skates of Am,, Inc., 180 A.D.3d 830, 119 N.Y.S.3d 204 [2d Dept 2020]; Fortune v Western Beef, Inc., 178 A.D.3d 671, 115 NY.S.3d 93 [2d Dept 2020]; Baptiste v Ditmas Park, LLC. 171 A.D.3d 1001, 98 N.Y.S.3d 280 [2d Dept 2019]). However, constructive notice will not be imputed when the defect is latent and would not be discoverable upon a reasonable inspection (see Reed v 64 JWB, LLC, 171 A.D.3d 1228, 98 N.Y.S.3d 636 [2d Dept 2019], lv denied 35 N.Y.3d 902, 124 N.Y.S.3d 308 [2020]; Marinaro v Reynolds, 152 A.D.3d 659, 59 N.Y.S.3d 87 [2d Dept 2017]; Taub v JMDH Real Estate of Garden City Warehouse, LLC, 150 A.D.3d 1301, 56 N.Y.S.3d 220 [2d Dept 2017]).
A defendant can also establish its prima facie entitlement to judgment as a matter of law in a premises liability case by demonstrating that the plaintiff is unable to identify the cause of his or her accident without engaging in speculation (see Segal v Haverstraw Mar. Corp., 176 A.D.3d 887, 107 N.Y.S.3d 893 [2d Dept 2019]; McCarthy v Jones, 139 A.D.3d 682, 30 N.Y.S.3d 332 [2d Dept 2016]; Peluso v Red Rose Rest., Inc., 106 A.D.3d 972, 965 N.Y.S.2d 603 [2d Dept 2013]). A plaintiffs inability to identify the cause of his or her accident is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiffs injuries would be based on speculation (see Segal v Haverstraw Mar. Corp., supra; DeForte v Greenwood Cemetery, 114 A.D.3d 718, 980 N.Y.S.2d 499 [2d Dept 2014]; West v 1718 Pitkin Ave. Realty, LLC, 123 A.D.3d 1020, 999 N.Y.S.2d 842 [2d Dept 2014]). Proximate cause may be established in the absence of direct evidence of causation by inference from the facts and circumstances underlying the injury (see Rivera v Waterview Towers, Inc., 181 A.D.3d 844, 121 N.Y.S.3d 140 [2d Dept 2020]; Cross v Roberts, 162 A.D.3d 852, 78 N.Y.S.3d 249 [2d Dept 2018]; Simion v Franklin Ctr. for Rehabilitation & Nursing, Inc., 157 A.D.3d 738, 69 N.Y.S.3d 64 [2d Dept 2018]). Cases premised on circumstantial evidence require a showing of sufficient facts from which the negligence of the defendant and the causation of the accident by that negligence can be reasonably inferred (see Simion v Franklin Ctr.for Rehabilitation & Nursing, Inc., supra; Bettineschi v Healy Elec. Contr., Inc., 73 A.D.3d 1109, 902 N.Y.S.2d 597 [2d Dept 2010]).
Defendant failed to demonstrate its prima facie entitlement to summary judgment dismissing the complaint. Defendant's submissions failed to eliminate triable issues of fact such as whether the subject clothing rack was in a dangerous condition, and whether it lacked constructive notice of the alleged dangerous condition (see Rosales v Five Star Carting, Inc., 185 A.D.3d 854, 125 N.Y.S.3d 563 [2d Dept 2020]: Holmes v Macy 's Retail Holdings, 184 A.D.3d 811, 124 N.Y.3d 582 [2d Dept 2020]). Although defendant provided the store's general inspection policy, the record was devoid of evidence as to when the subject clothing rack was actually inspected relative to plaintiffs accident (see Taub v JMDH Real Estate of Garden City Warehouse, LLC, supra; Lopez v Marshalls, 123 A.D.3d 981, 999 N.Y.S.2d 866 [2d Dept 2014]; Green vAlbermarle, LLC, 107 A.D.3d 948, 966 N.Y.S.2d 904 [2d Dept 2013]; Gerbi v Tri-Mac Enters, of Stony Brook, Inc., 34 A.D.3d 732, 826 N.Y.S.2d 101 [2d Dept 2006]). Moreover, defendant failed to establish, prima facie, that alleged dangerous condition was not visible and apparent, and would not have been noticed upon a reasonable inspection (see Malloy v Montefiore Med. Ctr., 183 A.D.3d 811. 122 N.Y.S.3d 532 [2d Dept 2020]; Fortune v Western Beef, Inc., supra).
Defendant also failed to establish, prima facie, that plaintiff was unable to identify the cause of her accident without resorting to speculation (see Croshier v New Horizons Resources, Inc., supra; Jaklitsch v Kelly, 176 A.D.3d 792, 110 N.Y.S.3d 438 [2d Dept 2019]; cf Segal v Haverstraw Mar. Corp., supra). Defendant's submissions indicate that no one was touching the subject clothing rack at the time that it tipped over and struck plaintiff, and thus, it is reasonable to infer that defendant's negligence proximately caused plaintiffs injuries (see generally Simion v Franklin Ctr. for Rehabilitation & Nursing, Inc., supra; Pajovic v 94-06 34th Rd. Realty Co., LLC, 152 A.D.3d 781, 59 N.Y.S.3d 138 [2d Dept 2017]; Petit v VDM Van & Stor. Co., 75 A.D.2d 539, 572 N.Y.S.2d 799 [3d Dept 1991]). As defendant failed to meet its prima facie burden, summary judgment is denied, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851. 487 N.Y.S.2d 316 [1985]).
Accordingly, the motion by defendant for summary judgment dismissing the complaint is denied.