Opinion
59822/2014
01-31-2017
Shaliner Ramoutar and Sookoo Ramoutar, Plaintiffs, v. The Diller-Quaile School of Music, Inc., Defendant.
Raneiri, Light & O'Dell, PLLC Attorneys for Plaintiff Via NYSCEF Lynch Schwab & Gasparini, PLLC Attorneys for Defendant Via NYSCEF
Raneiri, Light & O'Dell, PLLC Attorneys for Plaintiff Via NYSCEF Lynch Schwab & Gasparini, PLLC Attorneys for Defendant Via NYSCEF Lawrence H. Ecker, J.
The following papers numbered 1 through 25 were considered on the motion of The Diller-Quaile School of Music, Inc. ("Defendant"), made pursuant to CPLR 3212, seeking summary judgment and dismissal of the complaint of Shaliner Ramouttar and Sookoo Ramoutar ("Plaintiff"), together with such other and further relief: PAPERS/NUMBERED Notice of Motion, Affirmation, Exhibits A - L , 1 - 14 Affirmation in Opposition, Exhibits A - I , 15 - 24 Reply Affirmation 25
Sookoo Ramoutar is plaintiff's husband who sues derivatively.
Court rules require plaintiff to use numbered exhibit tabs.
Court rules require all exhibits to have external exhibit tabs.
Upon the foregoing papers, the court determines as follows:
Facts
Plaintiff alleges she sustained physical injuries as a result of a slip or trip and fall accident that occurred on January 30, 2012 in a children's music room at defendant's school located at 24 East 95th Street, New York, New York. Plaintiff was a nanny for a student at the school and was attending a music performance that day as a guest. The music performance was held in a room called the Performance Space.
The complaint alleges that guest spectators were required to remove their shoes and walk on a highly polished wood floor and loose area rugs upon which the spectators sit for the performance. Plaintiff states that she slipped, tripped and fell while walking over an unsecured area rug causing severe and permanent personal injuries. She contends defendant allowed the unsecured area rug to shift and bunch, causing a tripping hazard, and that defendant failed to keep and maintain the premises in a safe manner, failed to secure the rug, failed to prevent guests from causing the rug to shift and bunch, or otherwise become a tripping hazard, failed to warn guests, such as plaintiff, about the rug as a tripping hazard, and failed to provide chairs for guests to sit on. She claims defendant had actual and constructive notice of the unsafe conditions, but failed to take remedial measures to secure the rug prior to plaintiff's fall.
Defendant moves for summary judgment dismissing the complaint on several grounds. The defendant had no actual or constructive notice of any defect or dangerous condition relating to the rug, and that no one had previously tripped or fallen inside the premises. There had never been a complaint regarding any safety issues or concerns relating to the area rug or hardwood floor prior to the incident. A cleaning service would have cleaned the Performance Space the night before or the morning before the date of the accident. The head teacher always checks the condition of the room to make sure everything is in order. Defendant thus argues evidence is lacking the area rug or hardwood floor were defective, that a smooth or slippery floor constitutes a defective or dangerous condition, or that the school created a defective condition with the area rug or the wooden floor.
In support, defendant proffers the affidavit and report of Stan Pitera, a professional engineer, who performed a site inspection of the Performance Soom. He found the wooden floor to be properly slip-resistant and not in violation of any enforceable code of standards. He similarly opined that the area rug was appropriate for its intended use and no enforceable codes or standards required the rugs to be attached to the underlying hardwood floor in any way. [Deft's Ex. I, ¶ 17 and attached photos as second Ex. C].
In opposition to the motion, plaintiff responds that defendant created a hazardous condition and placed individuals, such as plaintiff, into a potential tripping / slipping hazard in having to navigate the loose area rugs in bare socks when she hit a ripple/bunching of the rug after having to remove her shoes. Plaintiff submits the expert report of Vincent Pici, P.E. which is unsworn and not in admissible form. As such, it may not be considered. Gao v City of New York, 145 AD3d 939 [2d Dept 2016] (unsworn report of plaintiff's expert submitted in opposition to the motion was not in admissible form); Hoffman v Mucci, 124 AD3d 723 [2d Dept 2015] (court properly did not consider plaintiff's expert report that was not in admissible form); Currie v Wilhouski, 93 AD3d 816 [2d Dept 2012] (unsworn letter of plaintiff's expert engineer was not evidentiary material in admissible form)
In reply, defendant points out inconsistencies in plaintiff's deposition testimony and alleged misstatements of facts in the opposition papers.
Discussion
Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it should be granted only where the moving party "has tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact" Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]. The function of the court on a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but merely to determine whether such issues exist. Bonaventura v Galpin, 119 AD3d 625 [2d Dept 2014]. To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented. Issue finding, rather than issue determination, is the key to the procedure. Matter of Suffolk Co. Dept. of Social Services v James M., 83 NY2d 178 [1994]; Sillman v Twentieth Century-Fox Film Corp, 3 NY2d 395, 404 [1957].
It is not the court's function on a motion for summary judgment to assess credibility. Chimbo v Bolivar, 142 AD3d 944 [2d Dept 2016]; Garcia v Stewart, 120 AD3d 1298, 1299 [2d Dept 2014], or to engage in the weighing of evidence. Scott v Long Is. Power Auth., 294 AD2d 348 [2d Dept 2002]. Thus a motion for summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" Ruiz v Griffin, 71 AD3d 1112, 1115 [2d Dept 2010].
In making this determination, the court must view the evidence in the light most favorable to the party opposing the motion, and must give that party the benefit of every inference which can be drawn from the evidence. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 [2013]; Nash v Port Washington Union Free School District, 83 AD3d 136, 146 [2d Dept 2011]; Pearson v Dix McBride, LLC, 63 AD3d 895 [2d Dept 2009]. Every available inference must be drawn in the [non-moving] party's favor. De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016].
The moving party is entitled to summary judgment only if it tenders evidence sufficient to eliminate all material issues of fact from the case. Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]. Put another way, in order to obtain summary judgment, there must be no triable issue of fact presented...even the color of a triable issue of fact forecloses the remedy. In re Cuttitto Family Trust, 10 AD3d 656 [2d Dept 2004], quoting LNL Constr. v MTF Indus., 190 AD2d 714, 715 [2d Dept 1993]. If a party makes a prima facie showing of its entitlement to summary judgment, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form to establish the existence of material issues of fact which require a trial of the action. Zuckerman, v City of New York, supra; Alvarez v Prospect Hosp., supra.
With respect to slip and fall cases, the Appellate Division, Second Department, recently stated in Gairy v 3900 Harper Ave., LLC , ___ AD3d ___, 2017 WL 355973, 2017 NY Slip Op 00458 [2d Dept 2017], "A defendant moving for summary judgment in a slip and fall case has the initial burden of establishing that it did not create the alleged dangerous or defective condition or have either actual or constructive notice of its existence for a sufficient length of time to discover and remedy it [internal citation omitted]. A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected [internal citation omitted]. 'To meet its initial burden on the issue of lack of constructive notice a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall.' [internal citations omitted]. 'When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed.'"
An owner or tenant in possession of realty owes a duty to maintain the property in a reasonably safe condition in view of the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. Basso v Miller, 40 NY2d 233, 241 [1976 ]; Mullen v Helen Keller Servs. for the Blind, 135 AD3d 837 [2d Dept 2016]; Cupo v Karfunkel, 1 AD3d 48 [2d Dept 2003]. 'Whether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury" (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]).'" Mullen v Helen Keller Servs. for the Blind, supra; Hernandez v Conway Stores, Inc., 143 AD3d 943 [2d Dept 2016].
Applying the legal principles and standard of review cited above, and the divergent facts as alleged by the parties, the court finds there are issues of fact that militate against granting summary judgment to defendant. Here, defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint through the submission of the deposition testimony of various school witnesses, photographs, and an expert's report. In opposition, plaintiff raised a triable issue of fact through her deposition, the deposition testimony of school witnesses and her affidavit. These triable issues of fact include: 1) whether there was a school or individual teacher policy or practice for students and guests to remove their footwear and wear only socks or bare feet while walking in the performance room; 2) the condition of the wooden floor that allegedly was highly polished and slippery; 3) the condition of the area rugs, including whether, when traversed over by several dozen students and guests, they were easily moved about or not, and whether they contained any adhesive devices to secure them to the floor; 4) whether the area rugs were rippled and bunched at the date and time in question, or not; 5) the plaintiff's position just prior to the accident in relation to the area rugs, and whether she had been standing or sitting prior to her fall; and 6) what caused plaintiff to slip or trip and fall.
Given the conflicting testimony and other evidence as to how and why the accident occurred, defendant has failed to eliminate all triable issues of fact as to whether it was at fault in the happening of the accident. Accordingly, defendant's motion for summary judgment must be denied and the case proceed to trial.
The court has considered the additional contentions of the parties not specifically addressed herein. To the extent any relief requested by either party was not addressed by the court, it is hereby denied. Accordingly, it is hereby
ORDERED that the motion of The Diller-Quaile School of Music, Inc. as against Shaliner Ramouttar and Sookoo Ramouttar, made pursuant to CPLR 3212, for summary judgment and dismissal of the complaint, is denied; and it is further
ORDERED that the parties shall appear at the Settlement Conference Part of the Court, Room 1600, on February 28, 2017, at 9:15 a.m.
The foregoing constitutes the Decision/Order of the court. Dated: January 31, 2017 White Plains, New York E N T E R, HON. LAWRENCE H. ECKER, J.S.C.