Opinion
Index No. 619269/2016 Mot. Seq. Nos. 002-MD 003-MG 004-MG 005-MG 006-MD 007-MG 008-MD 009-MD
07-27-2018
Ann Rolston, Plaintiff v. GPT Properties Trust, Reit Management & Research LLC, GBM Services Inc, The Brickman Group LLC, JFM Concrete, Corp., Defendants
PAZER. EPSTEIN, JAFFE & FEIN P.C. FOR: PLAINLTIFF HARRINGTON, OCKO & MONK, LLP FOR: GPT PROPERTIES TRUST and REIT MANAGEMENT & RESEARCH LLC CONGDON, FLAHERTY, O'CALLAGHAN FOR: JFM CONCRETE, CORP. RUBIN FIORELLA & FRIEDMAN LLP FOR: GBM SERVICES INC. CHESNEY & NICHOLAS, LLP FOR: THE BR1CKMAN GROUP LLC
Unpublished Opinion
MOTION DATE: 11/01/2017 12/06/201712/06/2018 01/24/2018 01/24/2018 05/09/2018 05/16/2018
ADJ. DATE: 06/27/2018 06/27/2018 06/27/2018 06/27/2018 06/27/2018 06/27/2018 06/27/2018 06/27/2018
PAZER. EPSTEIN, JAFFE & FEIN P.C. FOR: PLAINLTIFF
HARRINGTON, OCKO & MONK, LLP FOR: GPT PROPERTIES TRUST and REIT MANAGEMENT & RESEARCH LLC
CONGDON, FLAHERTY, O'CALLAGHAN FOR: JFM CONCRETE, CORP.
RUBIN FIORELLA & FRIEDMAN LLP FOR: GBM SERVICES INC.
CHESNEY & NICHOLAS, LLP FOR: THE BR1CKMAN GROUP LLC
DECISION& ORDER
Hon. John H. Rouse, Justice
Upon the reading and filing of the following papers in this matter:
(1) Notice of Motion (Seq. #002) by Defendants GPT Properties Trust and REIT Management & Research IXC for an Order compelling Defendant The Brickman Group LLC to supply a copy of all insurance policies that were in effect at the time of the accident; (2) all e-filed documents numbered 8-83 and 172-175 and 177-179; and (3)e-filed letter filed as document 176 and e-filed document 84 erroneously filed in the folder for motion sequence 003;
(4) Notice of Motion (Seq. #003) by Defendants GPT Properties Trust and REIT Management & Research LLC for an Order compelling Plaintiff to provide all outstanding discovery and demanded medical authorizations; (5) e-filed documents numbered -19-31, 49-51, and 84-91;
(6)Notice of Motion (Seq. #004) by Plaintiff for an Order striking the answer of Defendants GPT Properties Trust and REIT Management & Research LLC for their willful failure to preserve and intentional destruction of evidence of the condition of the location of the occurrence of the accident, or in the alternative to provide an adverse inference charge at the time of trial and precluding Defendants GPT Properties Trust and REIT Management & Research LLC from offering expert opinion testimony concerning the dangerous condition of the accident location; and compelling GPT Properties Trust and REIT Management & Research LLC to turn over their entire file of its expert evaluation of the location of the accident;
(7)Notice of Cross Motion (Seq. #005) by Defendant GPT Properties Trust and REIT Management & Research LLC for an Order striking the complaint; providing an adverse inference charge at the time of trial; and precluding the Plaintiff from offering expert testimony;
(8)e-filed documents numbered 58-63, 133-138, and 199-202;
(9)Notice of Motion (Seq. #006) by Defendants GPT Properties Trust and REIT Management & Research LLC for an Order granting them summary judgment and dismissing the Plaintiffs complaint against them: (10) e-filed documents numbered 64-81, 92-132, ISO, 198, 203-209;
(11) Notice of Motion (Seq. #007) by Defendant The Brickman Group, LLC, for an Order granting it summary judgment on all claims and cross claims, or in the alternative granting it summary judgment on its cross claim against JFM Concrete, Inc. based upon contractual indemnification; (12) e-filed documents numbered 145-171, 182-184,257-260;
(13) Notice of Cross Motion (Seq. #008) by Plaintiff for Summary Judgment against Defendants GPT Properties Trust and REIT Management & Research LLC; (14) e-filed documents numbered 185-196, 244-255, 265-268; and
(15) Notice of Cross Motion (Seq #009) by Defendants GPT Properties Trust and REIT Management & Research LLC for an Order granting them summary judgment on their claims for contractual indemnity and attorney's fees against Defendant Brickman Group, LLC; it is:
ORDERED that the motion (Seq. #002) by Defendants GPT Properties Trust and REIT Management & Research LLC for an Order compelling Defendant The Brickman Group LLC to supply a copy of all insurance policies that were in effect at the time of the accident is denied as moot; and it is further
ORDERED that the motion (Seq. #003) by Defendants GPT Properties Trust and REIT Management & Research LLC for an Order compelling Plaintiff to provide all outstanding discovery and demanded medical authorizations is granted; and it is further
ORDERED that the motion (Seq. #004) by Plaintiff for sanctions for the spoliation of evidence, and the cross motion by Defendants GPT Properties Trust and REIT Management & Research LLC (Seq. #005) are both granted but only to the extent that both sides are precluded from offering expert testimony on the issue of liability; and it is further
ORDERED that the motion (Seq. #006) by Defendants GPT Properties Trust and REIT Management & Research LLC for summary judgment dismissing the Plaintiffs complaint is denied; and it is further
ORDERED that the motion (Seq. #007) by Defendant The Brickman Group, LLC, for an Order granting it summary judgment on all claims and cross claims is granted and the case is dismissed as to it; and it is further
ORDERED that the cross motion (Seq. #008) by Plaintiff for Summary Judgment against Defendants GPT Properties Trust and REIT Management & Research LLC is denied; and it is further
ORDERED that the motion (Seq. #009) by Defendants GPT Properties Trust and REIT Management & Research LLC for summary judgment against The Brickman Group, LLC is denied; and it is further
ORDERED that all claims and cross claims against JFM Concrete, Inc. are dismissed; and it is further
ORDERED that the caption is amended to be as follows:
Ann Rolston, Plaintiff
-against-
GPT Properties Trust, Reit Management & Research LLC, and GBM Services Inc. Defendants
ORDERED that the prevailing parties are directed to serve a copy of this decision and order together with notice of entry on all other parties that have appeared in this action. See Protocol for Electronic Filing in Suffolk County Supreme Court at 11 (M) page 6 for rules on serving notice of entry. https://www.nycourts.gov/courts/10jd/suffolk/EFiling/
DECISION
This action by Plaintiff is to recover for injuries suffered in a slip and fall on December 17, 2013 in premises located at 5000 Corporate Court, Holtsville, NY. Plaintiff alleges she was making a delivery for Federal Express when she slipped and fell. Plaintiff in deposition testified that she slipped on a painted concrete floor in the loading dock area that had water on it. e-document 60, Plaintiffs deposition at page 94 lines 8-19.
Mot. Seq. 002
Defendant's motion for discovery from Defendant The Brickman Group LLC of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of ajudgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment as well as the request for an affidavit from Defendant The Brickman Group LLC that it is self-insured, and the nature and scope of that self-insurance would be appropriate, but upon its motion for summary judgment (007) The Brickman Group LLC has no liability and the issue is moot. The motion (002) is denied.
Mot. Seq. 003
Defendants GPT Properties Trust and REIT Management & Research LLC move this court for an Order compelling Plaintiff to provide all outstanding discovery and demanded medical authorizations that have been refused by Plaintiff. Plaintiff, in her bill of particulars, seeks to recover for the future loss of enjoyment of life, e-document 22. The broad claim for such damages places her entire physical condition in issue and it may not be parsed to restrict access to only some of her medical records. Moreover, whether some aspect of a pre-existing medical condition contributed to her fall certainly is within the ambit of material that if not directly relevant and admissible, could lead to relevant evidence. See DeLouise v. S.K.I. Wholesale Beer Corp., 79 A.D.3d 1092 (2nd Dept. 2010). The motion (003) is granted.
Mot. Seq. 004 and 005
Plaintiff moves (004) for sanctions against Defendants GPT Properties Trust and REIT Management & Research LLC for their willful failure to preserve and the intentional destruction of evidence of the condition of the location of the occurrence of the accident. Plaintiff slipped and fell on December 17, 2013 and it is alleged that on October 16, 2016 Defendants caused the floor to be re-painted before Plaintiff had a fair opportunity to inspect the floor with its expert to assess it coefficient of friction.
Defendants GPT Properties Trust and REIT Management & Research LLC cross move (005) for sanctions against the Plaintiff. Plaintiff disposed of the boots she was wearing on the day she slipped and fell, e-document 60, Plaintiffs deposition at page 71-72. Plaintiff testified she did not recall the brand of the boots she had been wearing, and did know whether her boots were wet from walking in the snow prior to the delivery, and did not recall whether they bad become wet inside her delivery truck. Id. Defendants contend this constitutes spoliation of evidence and seek sanctions.
This case is an unfortunately common slip and fall on premises. See PJI 2:91. Under the circumstances presented no expert can provide competent and admissible testimony about the coefficient of friction (CoF) between two surfaces when neither surface is available for examination, not the floor as re-painted and not the footwear that had been thrown out. Liability in this case will center on the respective fault of the parties in addressing the conditions present on the premises--a wet floor. See e.g. Maguire v. Southland Corp., 245 A.D.2d 347 (1997). There is nothing beyond the common understanding of the jury with respect to questions of liability that weigh in favor admitting expert testimony from either party. Franco v. Muro, 224 A.D.2d 579 (2nd Dept. 1996), followed by Gaiasso v 400 Exec. Blvd., LLC, 101 A.D.3d 677 (2nd Dept. 2012). Accordingly, the motion and cross motion are granted, but only to the extent that both sides are precluded from offering expert testimony on the issue of liability.
Mot. 006
Defendants GPT Properties Trust and REIT Management & Research LLC move this court for an Order granting them summary judgment. GPT Properties Trust and REIT Management & Research LLC argue they are excused from liability because of there was a storm in progress. See e.g. Solazzo v. N.Y.City Transit Auth., 6 N.Y.3d 734 (2005) NY Transit Authority not liable for snow and ice on subway stairs exposed to an ongoing storm, or for a reasonable time thereafter. The "storm in progress doctrine" is informative with respect to liability for conditions that change in the interior of premises due to a storm in progress, but it alone is not dispositive. See e.g. Kuznicki v. Beth Jacobs Teachers Seminary of Am. Inc.. 39 Misc.3d 286. Defendants have failed to make a prima facie case that they were not negligent in any part in the management of the premises. Ford v. Citibank, N.A., 11 A.D.3d 508 (2nd Dept. 2004); and Hickson v Walgreen Co., 150 A.D.3d 1087 (2nd Dept. 2017). Accordingly, the motion is denied.
Mot. 007
Defendant, The Brickman Group, LLC, moves this court for an Order granting it summary judgment on all claims and cross claims arising out of the Plaintiffs slip and fall inside the premises at 5000 Corporate Court, Holtsville, NY. The Brickman Group, LLC has provided sworn allegations of fact that it contracted to provide snow removal services from the exterior of the building and had never contracted to perform any services inside the premises. Plaintiff concedes that The Brickman Group, LLC bears no responsibility for the Plaintiffs fall, and contends responsibility for the interior floor is to be borne by either GPT Properties Trust and REIT Management & Research LLC (owner and management company) or GBM Services, Inc. its cleaning company. Defendants GPT Properties Trust and REIT Management & Research LLC and GBM Services, Inc. have failed to raise a triable issue of fact with respect to the movant's liability for conditions inside the premises. Accordingly the motion is granted in its entirety.
Mot. 008
Plaintiff cross moves for Summary Judgment against Defendants GPT Properties Trust and REIT Management & Research LLC. Plaintiff contends that because Defendants did nothing to remedy the accumulated water in the loading dock area they were necessarily negligent. Plaintiff has failed to make a prima facie case that Defendants were negligent and Plaintiff herself was free from negligence. Hernandez v Conway Stores, Inc., 143 A.D.3d 943 (2nd Dept. 2016). Accordingly, Plaintiffs motion for summary judgment is denied.
Mot. 009
Defendants GPT Properties Trust and REIT Management & Research LLC move for an Order granting them summary judgment against The Brickman Group, LLC. For those reasons stated with respect to The Brickman Group, LLC's motion for summary judgment (Mot. 007) this motion is denied in its entirety.
* * *
In view of the foregoing determinations with respect to the Brickman Group, LLC (Mot 007) there is no liability in JFM Concrete, Inc., the subcontractor for The Brickman Group, LLC, and all claims and cross claims against it are dismissed.
The foregoing shall constitute the decision and order of the Court.