Opinion
Index No. 16-617824 CAL. No. 18-00649OT Mot. Seq. Nos. 002 - MG; CASEDISP 003 - MD
03-04-2019
SANDRA BERNARD, Plaintiff, v. THE STOP & SHOP SUPERMARKET COMPANY LLC. and ARC BABYLON LLC, a Connecticut Limited Liability Company, Defendants.
SIBEN & SIBEN, LLP Attorney for Plaintiff. TOPJNO & BERNSTEIN, P.C. Attorney for Defendants
Unpublished Opinion
MOTION DATE 5-8-18 (#002)
MOTION DATE 9-5-18 (#003)
ADJ. DATE 9-19-18 (#002)
ADJ. DATE 11-7-18.
SIBEN & SIBEN, LLP Attorney for Plaintiff.
TOPJNO & BERNSTEIN, P.C. Attorney for Defendants
PRESENT: Hon DAVID T. REILLY, Justice.
HON. DAVID T. REILLY, JUDGE.
Upon the following papers read on these motions for summary judgment and for consolidation: Notice of Motion/ Order to Show Cause and supporting papers by defendants, dated June 21, 2018; Notice of Motion/Order to Show Cause and supporting paper by plaintiff, dated July 31, 2018; Notice of Cross Motion and supporting papers _; Answering Affidavits and supporting papers by plaintiff, dated September 8, 2018; Answering Affidavits and supporting papers by defendants, dated October 31," 2018; Replying Affidavits and supporting papers by defendants, dated September 17, 2018; Other ___; it is, ORDERED that the motion (002) by defendants and the motion (003) by plaintiff are consolidated for purposes of this determination; and it is
ORDERED that the motion by defendants for summary judgment dismissing the complaint is granted; and it is further
ORDERED that the motion by plaintiff for consolidation of this action with an action pending in this Court under assigned index number 602576/2018 is denied.
Plaintiff commenced this action to recover damages for injuries she allegedly sustained on the afternoon of March 25 2016 when she fell at a supermarket operated by defendant The Stop & Shop Supermarket Company LLC, and located on premises owned by its subsidiary, defendant Arc Babylon LLC The accident occurred outside, on a concrete walkway leading to the store's entrance. By her bill of particulars plaintiff alleges that she fell "as a result of a chipped, cracked, broken, sloped and slanted walkway which constituted a dangerous and defective condition" on the premises; that defendants were negligent among other things, in failing to maintain the entrance are in reasonably safe condition, and in permitting the walkway to be "chipped, cracked and broken," and in falling to make repairs to the walkway; and that defendants had notice of the alleged dangerous condition.
Defendants now move for summary judgment dismissing the complaint on the ground that plaintiff cannot establish her accident was due to a defective condition on the premises. Alternatively, defendants assert that the alleged crack in the walkway constitutes a trivial defect and is not actionable. Defendants' submissions in support of the motion include copies of the pleadings and the bill of particulars, a transcript of plaintiff s deposition testimony, photographs of the exterior of the supermarket marked as exhibits during plaintiffs deposition, and an affidavit of Bruce Astrachan, Manager of General Liability of The Stop & Shop Supermarket Company.
Plaintiff opposes the motion, arguing that she sufficiently "identified the area of her fall and the subject 'crack' as the condition which caused and/or contributed to her fall." She further argues that, based on the length and location of the crack in the walkway, an issue exists as to whether defendants had constructive notice of the alleged dangerous condition.
As a general rule, liability for a dangerous condition on property must be predicated upon ownership, occupancy, control or special use of the property (see Grover v Mastic Beach Prop. Owners Assn., 57 A.D.3d 729, 869 N.Y.S.2d 593 [2dDept 2008]; Dugue v 1818 Newkirk Mgt. Corp., 301 A.D.2d 561,756 N.Y.S.2d 51 [2d Dept 2003]; Millman v Citibank, N.A., 216 A.D.2d 278, 627 N.Y.S.2d 451 [2d Dept 1995]; see also Butler v Rafferty, 100 N.Y.2d 265, 762 N.Y.S.2d 567 [2003]). The owner or possessor of real property has a duty to maintain the property in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries (see Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606 [1980]; Basso v Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564 [1976]; Putnam v Stout, 46 A.D.2d 812,361 N.Y.S.2d 205 [2d Dept 1974], affd 38 N.Y.2d 607, 381 N.Y.S.2d 848 [1976]; Milewski v Washington Mat, Inc., 88 A.D.3d 853, 931 N.Y.S.2d 336 [2d Dept 2011]). The duty to keep premises in a reasonably safe condition is not dependent upon the plaintiffs status as an invitee, licensee or trespasser, or upon the status of the property as public or private (see Peralta v Henriquez, 100 N.Y.2d 139,760 N.Y.S.2d 741 [2003]; Basso v Miller, 40 N.Y.2d 233,386 N.Y.S.2d 564). And while an owner or possessor is not an insurer of the safety of people on its property (see Maheshwari v City of New York, 2 N.Y.3d 288, 778 N.Y.S.2d 442 [2004]; Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606 [1980]), it must act as a reasonable person in maintaining the property "in a reasonably safe condition in view of all of the circumstance,, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Basso v Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564).
To establish liability in a trip-and-fall action, a plaintiff must establish that a dangerous or defective condition caused his or her injuries, and that the defendant owner or possessor created the condition or had actual or constructive notice of it (see Acevedo v New York City Tr. Auth., 97 A.D.3d 515,947 N.Y.S.2d 599 [2d Dept 2012]; Starling v Suffokk County Water Auth., 63 A.D.3d 822, 881 N.Y.S.2d 149 [2d Dept 2009]; Dennehy-Murphy v Nor-Topia Servo Cir., Inc,, 61 A.D.3d 629, 876 N.Y.S.2d 512 [2d Dept 2009]; see also Gordon v American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646 [1986]). To constitute constructive notice, the dangerous or defective condition must be visible and apparent, and must have existed for a sufficient length of time before the accident to permit the owner to discover and remedy it (Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837,501 N.Y.S.2d 646; see Dennehy-Murphy v Nor-Topia Servo Cir., Inc., 61 A.D.3d 629,876 N.Y.S.2d 512; Denker v Century 21 Dept Stores, LLC, 55 A.D.3d 527,866 N.Y.S.2d 861 [2d Dept 2008]; Deveau v Galleria at White Plains, LP, 18 A.D.3d 695, 796 N.Y.S.2d 119 [2d Dept 2005]).
A defendant seeking to establish entitlement to summary judgment as a matter of law in a trip-and-fall case ordinarily has the initial burden of demonstrating that the plaintiffs injuries were not caused by a dangerous or defective condition, or that it did not have actual or constructive notice of the alleged dangerous or defective condition (see Leary v Leisure Glen Home Owners Assn,, Inc., 82 A.D.3d 1169, 920 N.Y.S.2d 193 [2d Dept 2011]; Sampino v Crescent Assoc, Ltd., 34 A.D.3d 779, 825 N.Y.S.2d 135 [2d Dept 2006]). However, a defendant also can make a prima facie case of entitlement to summary judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation (Ash v City of New York, 109 A.D.3d 854, 972 N.Y.S.2d 594 [2d Dept 2013]; see Vojvodic v City of New York, 148 A.D.3d 1086, 51 N.Y.S.3d 534 [2d Dept 2017]; Viviano v Key Corp, 128 A.D.3d 811,9 N.Y.S.3d 154 [2d Dept 2015]).
Concomitantly, a plaintiff can demonstrate that a defective or dangerous condition was a proximate cause of his or her accident even in the absence of direct evidence of causation. To establish a prima facie case based solely on circumstantial evidence, a plaintiff must present facts and conditions from which the negligence of the defendant and the cause of the accident may reasonably be inferred (see Schneider v Kings Hwy. Hosp. Or., 67 N.Y.2d 743, 500 N.Y.S.2d 95 [1986]; Bardi v City of New York, 293 A.D.2d 505, 739 N.Y.S.2d 747 [2d Dept], Iv denied 98 N.Y.2d 611,749 N.Y.S.2d 2 [2002]). Although not required to prove the exact nature of the defendants negligence (see Gayle v City of New York, 91 N.Y.2d 936, 680 N.Y.S.2d 900 [1998]), or to exclude every other possible cause for the injury-producing event to meet this burden (see Burgos v Aquedutt Realty Corp., 91 N.Y.2d 544, 684 N.Y.S.2d 139 [1998]; Bernstein v City of New York, 69 N.Y.2d 1020,517 N.Y.S.2d 908 [1987]; Schneider v Kings . Hwy. Hosp. Cir., 67 N.Y.2d 743,500 N.Y.S.2d 995), a plaintiff must offer competent evidence showing that it was "more likely" or "more reasonable" that the alleged injury was caused by the defendants negligence than by some other agency (Gayle v City of New York, 92 N.Y.2d 936, 937, 680 N.Y.S.2d 900; see Grob v Kings Realty Assoc, 4 A.D.3d 394, 771 N.Y.S.2d 384 [2d Dept 2004]; Collins v City of New York, 305 A.D.2d 529, 759 N.Y.S.2d 349 [2d Dept 2003]). The plaintiffs evidence must be sufficient for a jury to determine, based on logical inferences drawn from such evidence, that causes for the injury other than the defendants negligence are sufficiently remote (see Gayle v City of New York, 92 N.Y.2d 936, 680 N.Y.S.2d 900; Bernstein v City of New York, 69 N.Y.2d 1020, 517 N.Y.S.2d 908; Bardi v City of New York, 293 A.D.2d 505, 739 N.Y.S.2d 747).
Defendants established their entitlement to judgment as a matter of law by submitting deposition testimony showing that plaintiff is unable to identify what caused her to fall (see Viviano v KeyCorp, 128 A.D.3d 8119 N.Y.S.3d 154; Ash v City of New York, 109 A.D.3d 854, 972 N.Y.S.2d 594; Peluso v Red Rose Rest Inc 106 A.D.3d 972, 965 N.Y.S.2d 603 [2d Dept 2013]; Hunt v Meyers, 63 A.D.3d 685,879 N.Y.S.2d 725 [2d Dept] * denied 13 N.Y.3d 712, 891 N.Y.S.2d 304 [2009]; Hartman v Mountain Val. Brew Pub 301 A.D.2d1570 754N.Y.S.2d31 [2d Dept 2003]). Plaintiff testified at her deposition that on the day of the accident she went to the supermarket to purchase tulip plants. She testified that she selected two plants from a display set up just outside the entrance, and then walked inside the store to pay for them After paying for the two plants, she left the supermarket and returned to the outdoor display Wanting to look at other tulip plants that were inside of the store, plaintiff left the outdoor display area took four or five steps towards the entrance, and then fell on the cement walkway. Plaintiff testified that she did not know what caused her to fall, though she did observe various cracks in the walkway after her accident.
The burden, therefore, shifted to plaintiff to raise a triable issue as to whether defendants' alleged negligence in maintaining the walkway was a proximate cause of her accident (see Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166 [1980]; Hartman v Mountain Val Brew Pub, 301 A.D.2d 570,754 N.Y.S.2d 31; see generally Alvarez v Prospect Hasp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Zuckermnn v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). Plaintiff, in opposition, failed to submit evidence showing that a triable issue exists (see Viviano v Key Corp, 128 A.D.3d 811, 9 N.Y.S.3d 154; Goldberg v Village of Mount Kisco, 125 A.D.3d 929,5 N.Y.S.3d 149 [2d Dept 2015]; cf. Buglione v Spagnoletti, 123 A.D.3d 867, 999 N.Y.S.2d 453 [2d Dept 2014]; Stanojevic v Scotto Bros. Rest. Enters,, Inc., 16 A.D.3d 575, 792 N.Y.S.2d 147 [2d Dept 2005]). "Since it is just as likely that the accident could have been caused by some other factor, like a simple misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation" (Teplitskaya v 3-96 Owners Corp., 289 A.D.2d 477, 478, 735 N.Y.S.2d 585 [2d Dept 2001]).
Thus, absent evidence from which a jury could rationally conclude that plaintiffs fall was more likely due to the alleged defective condition of the walkway than a loss of balance or a misstep, defendants' motion for summary judgment dismissing the complaint is granted. The motion by plaintiff for an order consolidating this action with an action entitled Sandra Bernard, plaintiff, against UGL Services Unicco Operations Co. and C&W Facility Services, Inc., assigned index number 602576/2018, therefore, is denied, as moot.