Opinion
Index No. 310424/2011
01-20-2015
CARITZA CORDERO, Plaintiff, v. MET FOODS, 642 VEGS & MEAT CORP., 642 VEGS & MEAT CORP. d/b/a MET FOODS, B.M.J. FOOD CORP., and B.M.J. FOOD CORP. d/b/a MET FOODS, Defendants.
DECISION AND ORDER :
Defendants move for summary judgment dismissing the complaint pursuant to CPLR 3212. Plaintiff submits written opposition. The motion is granted.
In July, 2011, plaintiff was allegedly injured on defendants' premises when plaintiff slipped and fell on water in defendant's supermarket located at 649 Jackson Avenue in Bronx County.
In support of the motion, defendants submit the pleadings and bill of particulars; the certified, unsworn deposition testimony of the plaintiff; the certified, unsworn deposition testimony of the Jeanne Cintron, a non-party witness; and the affidavit of Jose Medina, defendants' store manager. Plaintiff's deposition testimony was that she had fallen near the front of the store, "a few feet" from the area where the cash registers were located. She testified that she was looking forward when she fell, but that after she slipped, she observed "clear dirty water with the track marks from shopping carts," which she later described as "dirty water, like I said before with the stickiness and the dirty marks from the shopping cart wheels." Defendant's witness, Jeanne Cintron, an employee of the supermarket, testified that on the date of the accident she observed a woman fall at the rear of the store, and that the only liquid present was coffee which the lady had spilled. The affidavit of Jose Medina states that he was the store manager, that he was at the supermarket on the date of the accident, that he inspected the area of the spill "constantly" and the rest of the store regularly, "at least hourly," for spills and other conditions on the floors, that there were no complaints on the day of the accident or spills noted, and there were no leaks from the soda machine located at the front of the store.
No party has challenged the accuracy of any of the transcripts. Under these circumstances, the deficiencies are deemed waived by the parties. See Rosenblatt v. St. George Health & Racquetball Assoc., LLC, 984 N.Y.S.2d 401, 2014 N.Y. App. Div. LEXIS 2854 (2d Dept. 2014) (failure to submit to the Supreme Court a certified copy of the plaintiff's deposition was an irregularity and, as no substantial right of a party was prejudiced, the court should have ignored the defect); Gomez v. Shop-Rite of New Greenway, 110 A.D.3d 483, 973 N.Y.S.2d 65, 2013 N.Y. App. Div. LEXIS 6489 (1st Dept. 2013) (appropriate to rely on unsigned, certified deposition transcript where transcript was not challenged as inaccurate).
In opposition, the plaintiff relies on the same evidence adduced by the defendants. She contends that the defendant's evidence is insufficient to establish specific evidence of an inspection prior to the fall, and thus the defendants have not made a prima facie case of the absence.of constructive notice. She further maintains that the plaintiff's testimony is sufficient to raise an issue of fact as to constructive notice.
A landowner is under a duty to maintain its property in a reasonably safe condition under the existing circumstances, including the likelihood of injury to third parties, the potential that any such injury would be of a serious nature and the burden of avoiding the risk. In order to recover damages, a party must establish that the owner created or had actual or constructive notice of the hazardous condition which precipitated the injury (Piacquadio v Re cine Realty Corp., 84 NY2d 967, 969, 646 NE2d 795, 622 NYS2d 493 [1994]. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it." (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 492 N.E.2d 774, 501 N.Y.S.2d 646 [1986]).
"A defendant who moves for summary judgment in a slip-and-fall action has the initial burden of making a prima facie demonstration that it neither created the hazardous condition, nor had actual or constructive notice of its existence" (Smith v Costco Wholesale Corp., 50 AD3d 499, 500, 856 N.Y.S.2d 573 [1st Dept 2008]). "To meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall." (Mei Xiao Quo v. Quong Big Realty Corp., 81 A.D.3d 610, 611, 916 N.Y.S.2d 155 [2d Dept. 2011] [citations omitted]; Quintana v. TCR, Tennis Club of Riverdale, Inc., 118 A.D.3d 455, 987 N.Y.S.2d 68 [1st Dept. 2014] [defendant failed to establisha lack of constructive notice of the wet condition on steps where the moving papers contained no indication of when the area was last inspected prior to the accident]; Qevani v 1957 Bronxdale Corp., 232 AD2d 284, 649 NYS2d 11 [1st Dept. 1996] [issue of fact as to whether existence of condition on steps for 90 minutes constituted constructive notice].)
Defendant's burden to establish a lack of constructive notice may be met by testimony of regular maintenance. (Raposo v. New York City Hous. Auth., 94 A.D.3d 533, 942 N.Y.S.2d 337 [burden shifted when defendant's caretaker testified that he followed the janitorial schedule pursuant to which he would have inspected all the staircases in the morning and afternoon, mopped the stairs any time he encountered a wet condition, replaced any light bulbs that were not functioning, and reported the condition to his supervisor]; Raghu v. New York City Hous. Auth., 72 A.D.3d 480, 897 N.Y.S.2d 436 [1st Dept. 2010] [janitor's testimony that his regular routine included cleaning the stairwell between 8:00 A.M. and 8:30 A.M., and that he did not observe any powder, was sufficient to shift the burden to plaintiff of demonstrating the existence of questions of fact].) However, vague testimony as to general cleaning practices lacking specific details may not be sufficient. (Birnbaum v. New York Racing Ass'n, Inc., 57 A.D.3d 598, 598-99, 869 N.Y.S.2d 222 [2d Dept. 2008] [defendant failed to meet its burden on the issue of lack of constructive notice where it offered evidence of "general daily cleaning practices," but failed to offer "evidence as to when the area in question was last cleaned and inspected relative to the time when the plaintiff fell," including any "evidence regarding any particularized or specific inspection or stair-cleaning procedure in the area of the plaintiff's fall on the date of the accident."])
Here, defendants' manager's testimony was sufficient to establish a prima facie case. He testified that he inspected all of the floors hourly, which is sufficient to shift the burden to plaintiff. As stated in Austin v. CDGA Natl. Bank Trust & Canandaigua Natl. Corp. (114 A.D.3d 1298, 980 N.Y.S.2d 660 [4th Dept. 2014]):
For the purpose of this motion, the Court does not rely on any inference that the plaintiff may have fallen at the back of the store, and not at the front, as she testified at her EBT. Any such inference would merely raise issues of fact to be resolved at trial.
"Although "a defendant may meet its burden of affirmatively demonstrating a lack of [constructive] notice by offering proof of regularly recurring maintenance or inspection of the premises" (Kropp v Corning, Inc., 69 AD3d 1211, 1212, 893 NYS2d 371 [2010] [emphasis added]; see Webb v Salvation Army, 83 AD3d 1453, 1454, 920 NYS2d 562 [2011]), such evidence is not required where, as here, defendants submitted the deposition testimony from their employees who were at the bank on the day of the accident concerning the condition of the step in the hours prior to and at the time of the accident (see Evangelista v Church of St. Patrick, 103 AD3d 571, 571, 960 NYS2d 97 [2013]; cf. Spector v Cushman & Wakefield, Inc., 87 AD3d 422, 423, 928 NYS2d 9 [2011]; De La Cruz v Lettera Sign & Elec. Co., 77 AD3d 566, 566-567, 909 NYS2d 448 [2010]; Kropp, 69 AD3d at 1212-1213; see generally Rodriguez v Bronx Zoo Rest., Inc., 110 AD3d 412, 412, 972 NYS2d 31 [2013])."In this case, the evidence by the manager that he personally inspected the floor near the cash register "on a constant basis," that no spills were observed and no complaints made, was sufficient to establish a prima facie case.
In opposition, plaintiff's testimony as to the "dirty water" which contained the marks of shopping cart wheels was not sufficient to raise an inference that the water was present for a sufficient time to give rise to constructive notice. The plaintiff did not observe the spill before she fell. Further, her testimony that the water was "dirty" and "clear" and contained the marks of the wheels of carts does not raise an inference that the water was present for a sufficient time to give rise to constructive notice. Jacques v. Richal Enters. (300 A.D.2d 45, 751 N.Y.S.2d 726 [1st Dept. 2002]), relied on by the plaintiff, in which the plaintiff slipped in "dirty ice and dirty water," was decided on the ground that the defendant failed to make out a prima facie case. It has been held that testimony that plaintiff slipped and fell on a shriveled and slimy lettuce leaf located in a puddle of dirty water did not raise an issue of fact as to constructive notice. (Constance v. Food Emporium, 289 A.D.2d 363, 735 N.Y.S.2d 400 [2d Dept. 2001] [dismissing complaint]).
The motion is granted . It is accordingly
ORDERED that the complaint is dismissed, and it is
ORDERED that the defendants shall serve a copy of this ORDER on the plaintiff with Notice of Entry thereon. Dated: January 20, 2015
/s/_________
SHARON A. M. AARONS, J.S.C.