Opinion
Index No. 156167/2017
10-10-2023
Jennifer Agius and ALEXANDER AGIUS, Plaintiffs, v. Gray Line Corporation, A/K/A GRAY LINE WORLDWIDE, GRAY LINE NEW YORK TOURS, INC., COACH USA, INC, CITYSIGHTS LLC, TWIN AMERICA LLC, and GRAY LINE NEW YORK SIGHTSEEING, Defendant.
Woods Lonergan PLLC, New York, NY (Andreas E. Christou and James F. Woods of counsel), for plaintiffs. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, NY (Urvashi Sinha of counsel), for defendants.
Unpublished Opinion
Woods Lonergan PLLC, New York, NY (Andreas E. Christou and James F. Woods of counsel), for plaintiffs.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, NY (Urvashi Sinha of counsel), for defendants.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142 were read on this motion for SUMMARY JUDGMENT.
In this slip-and-fall personal-injury action, defendants collectively move under CPLR 3212 for summary judgment dismissing the complaint of plaintiffs, Jennifer and Alexander Agius. Defendants' motion is granted.
BACKGROUND
According to the complaint, Jennifer Agius (plaintiff) was a passenger on a double decker bus when she slipped and fell while descending from the upper level of the bus (NYSCEF Doc No. 1).
The complaint alleges that plaintiff's fall was due to a "slick mat" on the landing and makes no allegation that rainwater or other substance was the cause of the fall (NYSCEF Doc No. 1 at ¶ 38). However, plaintiff's papers allege "the existence of a substance on the floor that was otherwise 'foreign' to the floor at the time of her fall" (Supplemental Bill of Particulars, NYSCEF Doc No. 112 at 2). Furthermore, it is plaintiff's testimony that "it looked like there was remnants of water" from where her feet slipped (NYSCEF Doc No. 113 at 57). She testified that after the accident there were no drops of water on the floor, but she "able to see the pattern of where [her] feet slipped indicating moisture" and it was not necessarily water, per se (NYSCEF Doc No. 113 at 57-58). Furthermore, the complaint alleges that she sustained injuries to her left ankle and had to undergo corrective surgery.
Plaintiff sues for negligence, alleging the defendants created a dangerous condition on the bus because the landing of the stairs was a smooth, non-tread surface whereas the remainder of the bus's flooring was treaded. Her husband, plaintiff Alexander Agius, alleges loss of consortium. Defendants now move for summary judgment.
DISCUSSION
A party moving for summary judgment must tender sufficient evidentiary proof to warrant judgment as a matter of law (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). If the moving party tenders sufficient evidentiary proof, the opposing party must proffer its own evidence to show disputed material facts requiring a trial (id.). The reviewing court should give the opposing party the benefit of all reasonable inferences (Negri v Stop & Shop, 65 N.Y.2d 625, 626 [1985]).
According to defendants, the complaint raises three potential bases for liability-defendants had constructive notice of the dangerous condition caused by rainwater, defendants created a dangerous condition with the smooth flooring that appeared to replace a once-treaded landing, and defendants did not correct the unsafe conditions plaintiff describes in the supplemental bill of particulars.
1. First, defendants state that, to the extent that plaintiff argues they had constructive notice of the presence of rainwater on the floor of the bus during an ongoing storm, her argument must fail (memorandum of law, NYSCEF Doc No. 121 at 3). They rely on Diaz-Martinez v King of Glory Tarbnacle, which holds that, "'general awareness that the floor might become wet after inclement weather d[oes] not permit an inference of constructive notice'" (170 A.D.3d 567, 568 [1st Dept 2019], quoting Asante v JPMorgan Chase & Co., 93 A.D.3d 429, 429 [1st Dept. 2012]). Plaintiff testified that it was raining at the time of the accident (deposition transcript, NYSCEF Doc No. 113 at 45). Defendants argue that they are not liable for constructive notice of the allegedly wet conditions because of ongoing rainy weather at the time of the accident.
In opposition, plaintiffs argue that defendants did not exercise reasonable care because they rely on maintenance inspections from March 2016 and September 2016 as well as a driver's inspection the day before the accident on August 9, 2016, to now prove their lack of constructive notice (memorandum of law in opposition, NYSCEF Doc No. 125 at 10, see, maintenance inspections, NYSCEF Doc No. 120, driver's inspection, NYSCEF Doc No. 118 at 19-63). Plaintiffs argue that because defendants did not inspect the bus on the date of the accident, August 10, 2016, this demonstrates the defendants' negligence in maintaining safe conditions on the bus.
Plaintiffs also contend that summary judgment should be denied because defendants failed to search properly for inspection- and accident-related forms and logbook entries from the day of the accident, or properly describe their unsuccessful searches. (See NYSCEF No. 125 at 18-20 & n 42.) This court is unpersuaded. Plaintiffs are correct that this court directed defendants to conduct a renewed search for the documents at issue, and to provide a more detailed affidavit of diligent search if the renewed search proved unsuccessful. (See Agius v Gray Line Corp., 2022 NY Slip Op 50543[U], at *2-3 [Sup Ct, NY County June 28, 2022].) Plaintiffs then chose, however, chose to file their note of issue six weeks before the court-ordered deadline for defendants' renewed search/affidavit. (Compare id. at *3, with NYSCEF No. 105 [note of issue].) And after defendants served a second search affidavit in compliance with this court's order, plaintiffs did not send defendants a deficiency letter for nearly three weeks-the same day defendants moved for summary judgment. (See NYSCEF No. 106 [notice of motion]; NYSCEF No. 137 [deficiency letter].) In these circumstances, defendants' failure to produce the documents in question, or to provide a search affidavit satisfactory to plaintiffs, does not require denying defendants' summary-judgment motion as premature.
The court rejects plaintiff's argument as it relates to rainwater. The First Department has held that a "defendant is not obligated to provide a constant remedy for the tracking of water onto a bus during an ongoing storm" (Morazzani v MTA NY City Tr., 67 A.D.3d 598, 892 [1st Dept 2009]). To the extent that the plaintiff alleges defendant's negligence in remedying rainwater on a bus while it was raining, the court grants defendants' motion for summary judgment.
2. This does not dispose of the case, however, because plaintiff argues she has raised triable issues based on her other contentions. Plaintiff testified that the area where she slipped lacked treading, unlike the rest of the bus's floor, creating a defect (NYSCEF Doc No. 113 at 56). Plaintiff alleges that she "noticed that the flooring had been changed from treaded flooring to a smooth, non-tread surface" (NYSCEF Doc No. 1 ¶ 18). There are photographs in the record depicting the smooth flooring at the base of the stairs that was noticeably different from the treaded flooring adjacent to it (NYSCEF Doc No. 99 at 12-15). Plaintiff argues that the alleged defect in the flooring demonstrates defendants' negligence.
Defendants argue that plaintiff's contentions on this issue, without more, does not show an actionable defect (NYSCEF Doc No. 121 at 4). Defendants rely on Murphy v Conner, where the Court of Appeals affirmed an order granting summary judgment to defendant where plaintiff sued for damages after a slip and fall on a smooth surface in a shopping mall (84 N.Y.2d 969, 972 [1994]). In opposition, plaintiff argues that because there is a factual issue as to whether the difference in smooth flooring directly below the stairs "caused the dangerous condition, further notice of such condition need not be shown" (Panagakos v Greek Archdiocese of N. & S. Am., 213 A.D.2d 336, 337 [1st Dept 1995]).
Plaintiff has supported her position that there was a difference in flooring with photographic evidence which shows that the area directly below the last step to the stairway has smooth flooring while the stairs and surrounding area have treaded flooring (NYSCEF Doc No. 118 at 8). She further testified that she was able to see a pattern of moisture after her fall, but there were no drops of water (NYSCEF Doc No. 113 at 57-58). In Murphy, the accident happened on tiles of a shopping mall. Although the court in Murphy held that the smoothness of the tiles was not enough to preclude summary judgment, the court also noted that there was no evidence "that the tiles were wet" (84 N.Y.2d 969, 972 [1994]). Here, outside of the issue of rainwater as aforementioned, plaintiff alleges that there was a pattern of moisture after her fall that was not water (NYSCEF Doc No. 113 at 58).
The First Department denied summary judgment in a case in which plaintiff slipped in the Port Authority Bus Terminal in Manhattan, holding that "plaintiff's assertion that she could feel wax on her clothes after her fall permits the inference that an excessive amount of wax was applied, creating a triable issue as to whether defendant was negligent" (Kudrov v Laro Servs. Sys., Inc. (41 A.D.3d 315, 316 [1st Dept 2007]). Here, on the other hand, plaintiff has not asserted that she felt anything on her clothing after the fall and the photographs do not show any wetness on the floor (NYSCEF Doc No. 99). Outside of plaintiff's testimony that she could see "the pattern when [her] fee slipped indicated moisture," there is no evidence that the floor was wet, or as aforementioned, that it was wet from anything besides rainfall (NYSCEF Doc No. 113 at 58). Unlike Kudrov, where the plaintiff successfully alleged excessive wax on the flooring, plaintiff here does not allege the substance of the moisture outside of rainwater nor provide any other means by which moisture could be inferred. The court finds that the issue of the slick flooring is analogous to Murphy, and grants summary judgment because the smoothness of the flooring does not create a triable issue of fact with respect to negligence.
The defendants argue that the additional allegations of negligence contained in plaintiffs' supplemental bill of particulars also do not give rise to a dispute of fact warranting trial (NYSCEF Doc No. 121 at 5). In that document, plaintiffs allege "there may have been an unsafe issue with the rise-over-run portion of the stairs... which Plaintiff will supplement after an expert's inspection of the same" (Supplemental Bill of Particulars, NYSCEF Doc No. 112 at 2). Defendants argue this claim is "too vague and conclusory to support any inference of negligence." Besides plaintiffs' vague claim in her Bill of Particulars that there may have been an unsafe issue with the rise over run, there is no evidence in the record of such issue.
This court previously denied plaintiffs' spoliation motion arising from the destruction of the bus (see Agius v Gray Line Corp., 2019 NY Slip Op 32513[U] [Sup Ct, NY County Aug. 27, 2019]).
Defendants also take issue with plaintiffs' supplemental bill of particulars stating that Jennifer Agius observed an "oily/slick" area around her fall (NYSCEF Doc No. 112 at 2). Defendants contend that this statement contradicts plaintiffs' claim that there were remnants of water and that she was "able to see the pattern when [her] feet slipped indicated moisture" (NYSCEF Doc No. 113 at 58). The complaint mentions no allegation of wet, moist, or oily condition of the flooring, and the only evidence found in the record is plaintiff's unsupported testimony and the allegation contained in the Supplemental Bill of Particulars. The photographs of the flooring also do not show any moist or oily condition (NYSCEF Doc. No. 99). Plaintiffs thus have not raised a dispute of fact on this issue (see, Zuckerman v City of New York, 49 N.Y.2d 562).
In her supplemental bill of particulars, Jennifer Agius also refers to a possible violation of 17 NYCRR § 720.0, which is DOT's vehicle-safety regulations governing acceptable bus flooring (NYSCEF Doc No. 112 at 5). Defendants argue that the bus flooring and conditions complied with the applicable safety requirements (memorandum of law, NYSCEF Doc No. 1232 at 7-8). Plaintiffs do not allege any specific violation of 17 NYCRR § 720.0. The photographs in the record show there is treading on all the steps (NYSCEF Doc No. 99), as § 720.4 (r) requires. DOT's safety requirements do not include mandatory treading on the entirety of the bus's floor. And regardless, plaintiffs have not established that the DOT vehicle-safety regulations track the minimum required standard of care for negligence purposes.
Accordingly, it is hereby
ORDERED that defendant's motion for summary judgment is granted and the complaint is dismissed, with costs and disbursements to defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that as provided for in this court's order entered June 30, 2022, plaintiffs may enter a supplemental judgment for the amount of their reasonable fees incurred in filing and briefing motion sequence 002, with the amount of those fees to be determined by motion on notice filed within 30 days of service of a copy of this order with notice of its entry; and it is further
ORDERED that defendants shall serve notice of entry on all parties and on the office of the County Clerk, which shall enter judgment accordingly.