Officer v. Guardian Servs. Indus., Inc.

Full title: JOAN OFFICER and DAVID OFFICER, Plaintiffs, v. GUARDIAN SERVICES…

Court: Supreme Court of the State of New York, New York County

Date published: Dec 16, 2009

2009 N.Y. Slip Op. 33062 (N.Y. Sup. Ct. 2009)

Opinion

113068/08.

December 16, 2009.

DECISION/ORDER

MARTIN SHULMAN, Judge.

In an action captioned Officer v. 450 Park, LLC, Taconic Investment Partners, LLC and Guardmark, LLC, Index No. 150415/07 (the "related action"), this court issued a Decision and Order dated April 29, 2009 and entered May 5, 2009 (the "April Decision") (Exhibit B to Motion) granting summary judgment to defendants, 450 Park LLC, Taconic Investment Partners LLC and Guardmark, LLC (collectively, the "Owner"). In this action transferred to this court on November 30, 2009, defendant, Guardian Services Industries, Inc. ("GSI" or "defendant"), a cleaning company the Owner retains, now seeks a similar order granting it summary judgment dismissing the complaint (Exhibit C to Motion) plaintiff, Joan Officer ("Officer" or "plaintiff"), separately filed against GSI for damages resulting from injuries she sustained in a slip-fall accident.¹ Plaintiff opposes the motion.

1 As the April Decision noted, plaintiff commenced the related action against the Owner (and this separate action against GSI) for severe personal injuries she suffered as a result of an accident that occurred during the early morning hours of February 14, 2007. Because it was a snowy/rainy day when Officer entered the building where she worked, plaintiff slipped on the lobby's wet marble floor right after taking a few steps.

Relevant to the instant motion, the April Decision stated the legal rationale for granting the Owner summary judgment dismissing the related action and even cited to controlling appellate precedent GSI relies on for dismissal of this action:

the crux of plaintiffs assertions is that defendants were negligent in that the precautions they took were inadequate to prevent the accident. However, defendants mopped the floor 20 minutes prior to the occurrence, and mats were placed on the floor, both actions of which have been deemed reasonable precautions to remedy wet conditions. Ford v Citibank, N.A., 11 AD3d 508 (2d Dept 2004). There is no legal requirement that defendants "provide a constant remedy to the problem of water being tracked into a building in rainy weather." Id. at 509. Furthermore, there is no obligation for defendants to cover the entire floor with mats and to continually mop up all tracked-in water. Choi v Olympia York Water St. Co., 278 AD2d 106 (1^st Dept 2000). (April Decision at p. 4).

Prior to GSI's summary judgment motion being referred to this court for disposition, this court issued a Decision and Order dated September 21, 2009 granting Officer leave to reargue the April Decision and ultimately denied the Owner's prior summary judgment motion ("Reargument Order").

In its Reargument Order, this court noted that "[p]laintiff d[id] not challenge the reasonableness of the general precautions . . . [the Owner] purportedly took that morning to remedy lobby floor slip hazard conditions during ongoing inclement weather (i.e., use of protective mats, stanchions with ropes and yellow warning signs as well as periodic mopping of tracked-in water) . . .", but claimed this court overlooked specific factual allegations of negligence which Officer alleged were the proximate cause of her accident, namely, "the negligent way . . . [the Owner] positioned the protective mats, which created a gap or defective condition ["gap condition"] and left exposed a critical portion of the marble lobby floor at the inner doorway entrance of the building and very location of her accident . . ." (Reargument Order at p. 2), resulting in a slip hazard. (Bracketed matter added).

The Reargument Order ultimately concluded that plaintiff, in opposing the Owner's summary judgment motion, did in fact demonstrate by admissible evidence the existence of a material issue of fact regarding the gap condition, viz., "whether . . . [the Owner] knew or should have known that when approximately 100 people entered the building's lobby that morning at least a half-hour before Officer's arrival, tracking in water precisely at the entranceway, whether appropriate remedial action should have been taken to re-position the mats closer to the entrance doors for the mats to absorb the water and prevent an obvious, ongoing slippery condition on the marble floor which could never be remedied by periodic mopping." (bracketed matter added) (Reargument Order at p. 4).

GSI's summary judgment motion filed on July 14, 2009 principally and fairly rested on the April Decision, which if extant, would have resulted in the dismissal of this action. Parenthetically, defendant in further support of its motion attaches an affidavit by Arthur Jacobs, a GSI employee who had been assigned to work in the lobby the morning of Officer's accident and who attests that he "mopped the lobby floor between 8:00 and 8:15 am and placed mats in the lobby that we used during inclement weather . . .", and that he took all safety measures to prevent potential slip and fall accidents in the lobby of the Owner's building. (Jacobs Supporting Aff. as Exhibit E to Summary Judgment Motion at ¶ 3).

When informed of this court's Reargument Decision reinstating the related action, as part of plaintiff's opposition to GSI's instant motion, defendant replied that it was still entitled to summary judgment despite the existence of a gap condition because Choi v Olympia York Water St. Co., 278 AD2d 106 (1^st Dept 2000) compels this result. This court disagrees.

As note in the April Decision, "[t]o impose liability for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a building, a defendant must have either created the dangerous condition, or had actual or constructive notice of it, and a reasonable time to undertake remedial action [internal citations omitted] . . ." Ruic v Roman Catholic Diocese of Rockville Centre, 51 AD3d 1000 (2d Dept 2008) (April Decision at p. 4).

That being said, Choi, supra, is inapplicable because the theory of Officer's case is not whether GSI failed to place additional mats in the lobby. In other words, plaintiff is not alleging that GSI, on behalf of the Owner, should have placed additional protective mats on portions of the lobby floor not immediately adjacent to the entranceway of the building to avoid potential slip hazards from the accumulation of tracked-in rain water ( cf., Pomahac v. TrizecHahn 1065 Ave. of the Americas, LLC, 65 AD3d 462 [1^st Dept. 2009] citing to the earlier Choi Decision). To reiterate, the material issue in dispute on this developed record is whether GSI "knew or should have known that when approximately 100 people entered the building's lobby that morning at least a half-hour before Officer's arrival, tracking in water precisely at the entranceway," (Reargument Order at p. 4) that defendant should have placed these mats "on the lobby floor immediately past the threshold[s] of the interior door[s]" ( Pomahac, supra, 65 AD3d at 462-463) (bracketed matter added) thereby eliminating any gap condition. This in turn would have allowed for the absorption of tracked-in rain "water and prevent[ed][an] obvious, ongoing slippery condition on the marble floor which could not be remedied by periodic mopping" (Reargument Order at p 4).

Because plaintiff has demonstrated by admissible evidence the existence of a factual issue requiring a trial ( Zuckerman v. City of New York, 49 NY2d 557, 562; see also, DeSouter v. HRH Const. Corp., 216 AD2d 249 [1^st Dept. 1995]), the conclusions reached in the Reargument Order are equally applicable here. Therefore, GSI's motion for summary judgment must be denied.

The parties shall appear for a pre-trial conference on January 12, 2010, at 9:30 a.m. at Part 1, in Room 1127B, 111 Centre Street, New York, New York.

This constitutes this court's Decision and Order. Courtesy copies of same have been provided to counsel for the parties.