Opinion
603764/15
02-16-2017
Kristina Anthony, Plaintiff(s), v. Highlands Country Club, GARRISON PROPERTIES LLC and GARRISON HIGHLANDS, LLC, Defendant(s).
Attorney for Plaintiff Law Offices of Harry C. Demiris Jr. PC 400 Post Avenue, Ste. LL1 Westbury, NY11590 516-997-9354 5169979393@fax.nycourts.gov HDEMIRIS@DEMIRISLAW.COM Attorney for Defendants Smith Sovik Kendrick & Sugnet, PC 90 Merrick Avenue, Ste. 500 East Meadow, NY11554 800-675-0011 jgoldman@smithsovik.com
Attorney for Plaintiff Law Offices of Harry C. Demiris Jr. PC 400 Post Avenue, Ste. LL1 Westbury, NY11590 516-997-9354 5169979393@fax.nycourts.gov HDEMIRIS@DEMIRISLAW.COM Attorney for Defendants Smith Sovik Kendrick & Sugnet, PC 90 Merrick Avenue, Ste. 500 East Meadow, NY11554 800-675-0011 jgoldman@smithsovik.com Jeffrey S. Brown, J.
The following papers were read on this motion:Papers Numbered Notice of Motion, Affidavits (Affirmations), Exhibits Annexed..........................1 Answering Affidavit .............................................................................................2 Reply Affidavit......................................................................................................3 Memoranda of Law................................................................................................4
Defendants move pursuant to CPLR 3212 for summary judgment dismissing the complaint.
Before this court is a personal injury action. On August 30, 2014, plaintiff was attending a wedding at the Highlands Country Club. Plaintiff alleges that she slipped and fell on the dance floor as a result of a dangerous condition thereon.
In support of this motion are four deposition transcripts which are attached to the moving papers. The first deposition is of the plaintiff, Kristina Anthony. She testified that she was attending her cousin's wedding on the evening of August 30, 2014 at the Highlands Country Club in Garrison, New York. Plaintiff was dancing on the wood dance floor, and at the time of the accident, plaintiff's feet came out from under her. She fell down and her left wrist took the brunt of the fall. She was helped up and continued to dance for about one or two more minutes. Prior to or after her fall, plaintiff testified that she did not see or become aware of anything on the floor that would have caused her to fall. She did not notice any member of the wait staff spill anything on the floor.
Plaintiff testified that after she fell, she heard Danielle West (the maitre d'of Highlands Country Club) tell plaintiff's husband, William Anthony, that she was sorry that water was present on the dance floor.
William Anthony, plaintiff's husband, testified that he and his wife attended a wedding on August 30, 2014 and he witnessed his wife's accident. At the time of the accident she was dancing with family and friends. Prior to his wife falling, he did not notice anything on the floor in the area where she had fallen, nor did he see anyone spill anything in the area where she had fallen.
After the accident, he picked up his wife and took her outside of the wedding hall. He [*2]then went in to find the maitre d'. The wait staff pointed her out to Mr. Anthony. He told the maitre d' that his wife fell on the dance floor, there was water on the dance floor and his wife was hurt " pretty bad." Mr. Anthony testified that in response the women said, "Oh, s**t, they didn't clean that up" and that she further stated, "They were supposed to clean that up." He then took her to the area on the dance floor where his wife fell. The maitre d' saw that the floor was wet and said, " I got to get that cleaned up." Mr. Anthony testified that the maitre d' was upset because prior to the happening of this incident, she told her staff to clean it up.
Mr. Anthony testified that he noticed water on the dance floor after he picked up his wife. It was a wet surface that measured about one or two feet. An accident report was taken. Other than the telephone numbers, the report was filled out by the maitre d'. There is also a deposition of Danielle West, who was the Event Sales Manager for the Highlands Country Club in August of 2014. She testified that she does the hiring, preparations and scheduling for weddings. She does the sales for the country club and meets with the clients to determine their needs. She is also present at the event from beginning to the end. Ms. West makes sure that the event runs well and all of the guests are taken care of. She was at the event on August 30, 2014. According to Ms. West, water and wine are brought to the tables in bottles, not glasses, and poured by wait staff. The bar is self service. Further, there is a housekeeper who mops and sweeps the dance floor Monday, Wednesday, Friday, Saturday and Sunday during the day. During an event, if there is a spill on the floor, an employee would stand over the spill to make sure no one walks over the area. Another server goes to the kitchen and grabs "purple rags" in order to clean up the spill. Once the floor is dry, everything can resume.
At the time of the party, Ms. West was not aware of anything spilling on the dance floor, nor was any of the staff aware of any spill on the dance floor. None of Highlands' employees cleaned up any spill because there was no spill. Further, she has no recollection of a conversation with Mr. Anthony about any spill. Any conversation would have been noted in her incident report. There is no notation of a spill on the report. In addition, Mr. Anthony did not tell her the precise location where his wife had fallen, nor did any other person advise her of the location of the fall.
After she took the report, she left Mrs. Anthony to walk around the dance floor. Mr. Anthony did not go with her.
The final deposition was of a non-party Lindsey Kolb. On August 30, 2014 she attended her husband cousin's wedding. Prior to the accident she was on the dance floor and witnessed the plaintiff fall. In the moments leading up to the fall, she only observed a wooden floor with nothing else out of the ordinary on the floor. She observed the plaintiff lose her balance and fall to the floor. She got back up and continued to dance. Ms. Kolb testified that the plaintiff's husband did not come over to assist the plaintiff in getting up. After the plaintiff got up, Ms. Kolb testified that she did not observe any water or wetness on the floor. None of the people dancing examined the floor. Plaintiff's wrist then began to swell and they left the dance floor to [*3]sit outside. Ms. Kolb further testified that Mr. Anthony did not witness the fall. In opposition, counsel for plaintiff submits three of the same depositions submitted by the defendants (Kristina Anthony, William Anthony and Danielle West).
It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact (Sillman v Twentieth Century Fox, 3 NY2d 395 [1957]; Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Bhatti v Roche, 140 AD2d 660[2d Dept 1998]). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the Court, as a matter of law, to direct judgment in the movant's favor (Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065 [1979]). Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation (CPLR § 3212 [b]; Olan v Farrell Lines, 64 NY2d 1092[1985]).
If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial (Zuckerman v City of New York, 49 NY2d 557 [1980], supra). It is incumbent upon the non-moving party to lay bare all of the facts which bear on the issues raised in the motion (Mgrditchian v Donato, 141 AD2d 513 [2d Dept 1998]). Conclusory allegations are insufficient to defeat the application and the opposing party must provide more than a mere reiteration of those facts contained in the pleadings (Toth v Carver Street Associates, 191 AD2d 631 [2d Dept 1993]). When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist (Sillman v Twentieth Century Fox, 3 NY2d 395 [1957], supra)." (Recine v. Margolis, 24 Misc 3d 1244A [Sup. Ct. Nassau Cty. 2009]).
"A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it." (Yioves v T.J. Maxx, Inc., 29 AD3d 572, 572 [2006]; see Britto v Great Atl. & Pac. Tea Co., Inc., 21 AD3d 436 [2005]; Joachim v 1824 Church Ave., Inc., 12 AD3d 409, 410 [2004]; Stumacher v Waldbaum, Inc., 274 AD2d 572 [2000]). Only after the movant has satisfied this threshold burden will the court examine the sufficiency of the plaintiff's opposition (see Britto, 21 AD3d 436; Joachim, 12 AD3d 409).
More specifically, "the proponent of a motion for summary judgment is required to make a prima facie showing of entitlement to judgment, as a matter of law, offering sufficient evidence to eliminate any material issues of fact from the case. The failure to make such a showing requires the denial of the motion, regardless of the insufficiency of the opposing papers (see, Winegrad v. New York Univ. Med. Center, 64 NY2d 851; Royal v. Brooklyn Union Gas Co., 122 [*4]AD2d 132; Raia Indus. v. Young, 124 AD2d 722)." (Fox v Wyeth Labs, 129 AD2d 611 [2d Dept 1987]). Here, there is no evidence that defendants created the alleged condition or proof required to establish constructive notice by the defendants. The plaintiff contends that notice can be imputed to the defendant on the basis of a "recurrent condition." In particular, the plaintiff alleges that "insofar as the defendants were aware that water and a variety of other beverages were customarily carried on and across the subject dance floor, required a nightly cleaning of that floor and a continuous lookout for such spills, a jury may infer that defendants had actual knowledge of the recurrent condition and therefore could be charged with constructive notice of the resulting dangerous condition." To the contrary, a general awareness that drinks might spill is insufficient to constitute notice of the particular condition at issue. ( Crawford v. AMF Bowling Centers, Inc., 18 AD3d 798, 799 [2d Dept 2005] [citing Gloria v. MGM Emerald Enters., 298 AD2d 355 [2d Dept 2002]]). The plaintiff fails to offer any evidence of an recurrent condition leading to plaintiff's accident.
Moreover, the only proof of actual notice by Highlands is an alleged admission against interest that the Event Sales Manager, Ms. West, knew of the spill and was surprised that the water was still on the floor. Ms. West, however, denies that the statement to Mr. Anthony was ever made by her. "While hearsay statements may be used to oppose motions for summary judgment, they cannot, . . . be the only evidence submitted to raise a triable issue of fact." (Rallo v. Man-Dell Food Stores, Inc., 117 AD3d 705, 706 [2d Dept 2014]).
Ms. West, as the Event Sales Manager was an agent of the defendant Highlands. "The hearsay statement of an agent is admissible against his or her employer under the admission exception to the hearsay rule only if the making of the statement is an activity within the scope of his or her authority." (Loschiavo v. Port Authority of New York and New Jersey, 58 NY2d 1040 [1982]). "A statement by an agent who has no authority to speak for the principal does not fall within the speaking agent exception to the rule against hearsay even where the agent was authorized to act in the matter to which [the] declaration relates." (Alvarez v. First Natl. Supermarkets, Inc., 11 AD3d 572, 573 [2d Dept 2004] [quoting Simpson v. New York City Tr. Auth., 283 AD2d 419 [2d Dept 2001]). The burden is on the proponent of the statement to establish its admissibility. (Id.) Accordingly, the record before the court must show that this employee, Ms. West, possessed the authority to speak on Highlands' behalf. (Fontana v. Fortunoff, 246 AD2d 626 [2d Dept. 1998]).
The Second Department has found statements, even those of managerial staff, inadmissable absent evidence of the declarant's authority to speak for his employer. For example, in Alvarez, the Second Department found the plaintiff's testimony concerning a store manager's statement properly excluded where the plaintiff failed to adduce evidence as to the speaking authority of the declarant (Alvarez, 11 AD3d at 573; see also Cohn v. Mayfair [*5]Supermarkets, Inc., 305 AD2d 528 [2d Dept 2003] ]["[T]he plaintiff did not provide evidence that the store manager had such authority to speak on behalf of the defendant."]; Williams v. Waldbaums Supermarkets Inc., 236 AD2d 605 [2d Dept1997] [same]; Risoli v. Long Island Lighting Co., [2d Dept 1993] [testimony that restaurant assistant manager stated that he was aware of reported smell of gas prior to the plaintiff's accident inadmissible against restaurant under speaking agent exception to the hearsay rule]). Here, although Ms. West testified that she was responsible for booking and running events at Highlands, the plaintiff has not adduced evidence regarding the hierarchy of the managerial staff of the club or that Ms. West was within the class of employees authorized to speak for the club. In fact, plaintiff does not even address the issue much less establish that Ms. West was a person apparently vested with sufficient managerial responsibility. (Cf. Johnson v. Hallam Enterprises Ltd., 208 AD2d 1110, 1111[3d Dept 1994] [authority to speak found where declarant was the president and treasurer of the corporation apparently vested with complete managerial responsibility to run defendant's day-to-day operations]).
In addition, according to the testimony of Mr. Anthony, at least one of Ms. West's statements was made while she was observing the condition on the dance floor. However, such statement is not admissible under the present sense impression exception to the hearsay rule as it was not corroborated. (People v. Vasquez, 88 NY2d 561, 574-575 [1996] ["[T]he key components of 'present sense impressions' are contemporaneity and corroboration."]; Martorell v. Ortiz, 137 AD3d 500 [1st Dept 2016]; Government Employees Ins. Co. v. Boohit, 122 AD3d 525 [1st Dept 2014]). To the contrary, Ms. West denied being aware of any water on the dance floor and Ms. Kolb testified that she did not observe any water or wetness on the dance floor.
The court finds that defendants have established a prima facie showing of entitlement to summary judgment, and the plaintiff has failed to adduce evidence sufficient to withstand the defendant's motion.
For the foregoing reasons, it is hereby:
ORDERED, that the defendants' motion for summary judgment is granted.
This constitutes the decision and order of this court. All applications not specifically addressed herein are denied. Dated:Mineola, New York
February 16, 2017