Opinion
Index No. 603973/2017 Mot. Seq. Nos. 003 MotD 004 MD
10-19-2020
FRANK CIARAMITARO and MELISA CIARAMITARO, Plaintiffs, v. K. THOMPSON FOODS, LLC, PEPSI-COLA BOTTLING CO OF NEW YORK and THE COCA-COLA COMPANY d/b/a COCA-COLA BOTTLPNG COMPANY, Defendants.
GUCCIARDO LAW FIRM, PLLC Attorney for Plaintiffs TORINO & BERNSTEIN, P.C. Attorney for Defendant K. Thompson Foods GOLDBERG SEGALLA, LLP Attorney for Defendant Coca-Cola Company POB CHRISTOPHER P. DIGIULIO, ESQ. Attorney for Defendant Pepsi-Cola Bottling Company of New York
Unpublished Opinion
MOTION DATE 4/9/20 (003), 6/11/20 (004)
ADJ. DATE 7/30/20
GUCCIARDO LAW FIRM, PLLC Attorney for Plaintiffs
TORINO & BERNSTEIN, P.C. Attorney for Defendant K. Thompson Foods
GOLDBERG SEGALLA, LLP Attorney for Defendant Coca-Cola Company POB
CHRISTOPHER P. DIGIULIO, ESQ. Attorney for Defendant Pepsi-Cola Bottling Company of New York
PRESENT: Hon. GEORGE M. NOLAN Justice of the Supreme Court
HON. GEORGE M. NOLAN JUSTICE
Upon the following papers read on the e-filed motions for summary judgment: Notice of Motion/Order to Show Cause and supporting papers by Pepsi-Cola Bottling Company of New York, inc., filed March 16, 2020 and by K. Thompson Foods, LLC, filed May 18, 2020; Notice of Cross Motion and supporting papers ___; Answering Affidavits and supporting papers by plaintiffs, filed July 1, 2020; Replying Affidavits and supporting papers by Pepsi-Cola Bottling Company of New York, Inc., filed July 28, 2020, and by K. Thompson Foods, LLC, filed July 16, 2020; Other___; it is
ORDERED that the motion (seq. 003) of Pepsi-Cola Bottling Co. of New York and the motion (seq. 004) by K. Thompson Foods, LLC, are consolidated for the purpose of this determination; and it is further
ORDERED that the motion of defendant Pepsi-Cola Bottling Corp. for summary judgment dismissing the plaintiffs complaint and all cross-claims against it, is denied; and it is further
ORDERED that the motion of defendant K. Thompson Foods, LLC, for summary judgment dismissing the plaintiff's complaint and all cross-claims against it, LLC, is denied.
In this personal injury action, plaintiff, Frank Ciaramitaro (hereinafter "Ciaramitaro") alleges that he slipped and fell on water at a Shop Rite supermarket owned by defendant K. Thompson Foods, LLC (hereinafter "KTF"). Plaintiff contends that the water leaked from a refrigerator owned and maintained by defendant Pepsi-Cola Bottling Co. of New York (hereinafter "Pepsi") and located at the end of a checkout aisle in KTF's Shop Rite supermarket. The incident allegedly happened on July 31, 2016.
Plaintiff Melisa Ciaramitaro makes a claim for loss of services only.
Pepsi and KTF both move for summary judgment seeking an order dismissing the complaint and all cross-claims against them. In order to establish a prima facie case, a plaintiff in a slip-and-fall negligence action must prove either that the defendant created the condition that caused the plaintiffs injuries or that the defendant had actual or constructive notice of the condition (Schwartz v. Mittleman, 220 A.D.2d 656, 632 N.Y.S.2d 667 [2d Dept 1995]). However, a defendant who moves for summary judgement in such a case has the initial burden of making aprima 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 (Britto v. Great Atlantic & Pacific Tea Company, Inc., 21 A.D.3d 436, 799 N.Y.S.2d 828 [2d Dept 2004]). "To meet its initial burden on the issue of lack of constructive notice, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Birnbaum\.New York Racing Association, Inc., (57 A.D.3d 598, 599, 869 N.Y.S.2d 222 [2d Dept 2008]). Only after the moving defendant satisfies this threshold burden will the court examine the sufficiency of the plaintiffs opposition (Joachim v. 1824 Church Avenue, Inc., 12 A.D.3d 409, 784 N.Y.S.2d 157 [2d Dept 2004]).
In support of its motion, Pepsi submits the pleadings, a transcript of the deposition of plaintiff Frank Ciaramitaro, an affidavit from Daniel Dc Luca, and a transcript of the deposition of Gregory Aureliano. Pepsi admits that it owned the refrigerator at issue but contends that there is no evidence to show that its refrigerator was leaking, that it did not create the leak, and that it had no actual or constructive notice of any leak. In opposition, plaintiffs submit Ciaramitaro's affidavit, the pleadings, bills of particulars, a transcript of the deposition of Aureliano, a transcript of the deposition of De Luca, a transcript of the deposition of Erika Thompson, and an incident report.
Pepsi's contention that there is no evidence that its refrigerator was the source of the liquid on the supermarket floor ignores Ciaramitaro's deposition testimony. Ciaramitaro testified that the liquid which caused his fall came from underneath the refrigerator, that he saw "water or liquid of some substance coming from underneath the refrigerator" and he described it as a "continuous stream of water." Although Ciaramitaro also responded "[n]o" when asked if he had "any knowledge as to what the source of that liquid was on the floor," a reasonable fact finder could conclude that the refrigerator was the source of the leak based on Ciaramitaro's testimony that he observed a stream of liquid coming from underneath the refrigerator. Pepsi's contention that the puddle-which Ciaramitaro described as approximately two feet wide and four feet long-came "from some other source," such as rainwater dripping from shopping carts, is appropriately directed toward the trier of fact.
As Pepsi did not establish, as a matter of law, that the water that caused the plaintiff to slip did not come from its refrigerator, its motion for summary judgment must be denied (see Bautista v. Kysor/Warren, 96 A.D.3d 982, 947 N.Y.S.2d 162 [2nd Dept 2012]).
In support of its summary judgment motion, KTF submits, among other things, photographs and the deposition transcripts of Ciaramitaro, Thompson, Aureliano, and De Luca. KTF contends that it did not create the complained-of puddle and had no actual or constructive notice thereof. In opposition, plaintiffs submit an affidavit from Ciaramitaro, the pleadings, bills of particulars, transcripts of the depositions of Aureliano, De Luca, and Thompson, and an incident report.
KTF failed to meet its burden of showing that it lacked constructive notice of the puddle. KTF submitted the testimony of Gregory Aureliano, who was a co-manager of the supermarket at the time of the accident. While Aureliano stated that he performed hourly inspections of the supermarket, he could not recall the results of any inspections that day and admitted that he had no independent recollection of what he did on July 31. Indeed, when asked "|a]s you sit here today, do you recall what you found and what you didn't find" during the inspections, Aureliano replied "[n]o." Similarly, when asked "[d]o you actually have an independent memory of what you did on July 31, 2016?," Aureliano replied "[n]o, I don't remember." Aureliano did not know the results of any inspections, to the extent they were performed, by the front end manager or maintenance personnel. He also did not know when the area was last mopped prior to the accident. And KTF has not submitted any records of any inspections or cleaning. Aureliano merely testified to his general cleaning and inspection procedure, which is insufficient (Williams v Island Trees Union Free Sch. Dist, 177 A.D.3d 936, 114 N.Y.S.3d 118 [2d Dept 2019]; Lebron v 142 S 9, LLC, 151 A.D.3d 835, 54N.Y.S.3d 679 [2d Dept 2017]; Valdes v Pepsi-Cola Bottling Co. of N.Y., Inc., 150 A.D.3d 926, 54 N.Y.S.3d 436 [2d Dept 2017]; Ansari v MB Hamptons, LLC, 137 A.D.3d 1174, 28 N.Y.S.3d 397 [2d Dept 2016]).
To the extent that KTF contends that the puddle was not visible and apparent, KTF failed to eliminate all questions of fact on this issue. In addition to plaintiffs testimony that he saw the puddle after he fell, Aureliano's testimony also indicates that he saw the puddle. Although portions of his testimony were inconsistent and contradictory, Aureliano testified that he saw plaintiff slip on "[a] little water." When asked specifically whether plaintiff slipped on water, Aureliano stated that it was raining, "all the wagons were wet and people were coming in, so it could have been water from the wagon that fell on the floor, that's what it looked like to me." When his inconsistent testimony is viewed in the light most favorable to plaintiffs, it appears that Aureliano observed the water on the floor; indeed, he said "that's what it looked like to me" when describing the water on the floor. Thus, Aureliano's testimony raised triable issues of fact as to whether the alleged puddle was visible and apparent (see Rivera v Tops Mkts., LLC, 125 A.D.3d 1504, 4 N.Y.S.3d 431 [4th Dept 2015] [noting that "defendant submitted the deposition testimony of a store manager, who admitted that she observed water on the floor," and although "that employee also stated that a person walking through that area would have a difficult time seeing the water on the floor, that testimony, at most, raises a triable issue of fact whether the puddles were visible and apparent"]; Porco v Marshalls Dept. Stores, supra ["The record, including plaintiffs description of the configuration of the substance and defendants' witness's observation of the same, indicates that the substance was visible and apparent."]).
Additionally, KTFs contention that "there is no evidence that there was even a liquid substance on the floor or the source of said liquid" is erroneous. As discussed above, Ciaramitaro testified that he slipped on liquid that originated underneath the refrigerator. Ciaramitaro also stated that a manager named Greg mopped up the puddle after the accident. And although Gregory Aureliano's testimony was internally contradictory and inconsistent on this point, he stated that he observed Ciaramitaro slip on "[a] little water." Furthermore, KTF's contention that the puddle existed for only "one to two minutes prior to his fall is not persuasive for the same reasons stated above.
KTF does not include any additional argument related to the cross claims asserted against it. Thus, KTF's motion is denied in its entirety.