Opinion
601214/2017
09-16-2019
Kimberly DUGGAN, Plaintiff, v. SHELLY MANAGEMENT CORP., Calandro Landscape & Design LLC and All Associates, Defendants.
The appearances of counsel are as follows: For Plaintiff, Rebecca Fortney, Esq., Ferro, Kuba, Mangano, Sklyar, PC, 424 West 33rd St, Ste 440, New York, NY 10001 For Shelly Management and All Associates, Jeffrey P. Yong, Esq., Martyn & Martyn, 330 Old Country Rd., Ste 211, Mineola, NY 11501
The appearances of counsel are as follows: For Plaintiff, Rebecca Fortney, Esq., Ferro, Kuba, Mangano, Sklyar, PC, 424 West 33rd St, Ste 440, New York, NY 10001
For Shelly Management and All Associates, Jeffrey P. Yong, Esq., Martyn & Martyn, 330 Old Country Rd., Ste 211, Mineola, NY 11501
Carmen Victoria St. George, J.
The following electronically-filed papers were read upon this motion:
Notice of Motion/Order to Show Cause 10-19
Answering Papers 25
Reply 26
Briefs: Plaintiff's/Petitioner's
Defendant's/Respondent's
The owner and management company of the commercial premises, Shelly Management Corp. and All Vets Corp d/b/a All Associates (the defendants), move for summary judgment dismissal of this premises liability action. Plaintiff maintains that she sustained physical injuries when she slipped on an icy puddle near the entranceway to her place of employment. Plaintiff's accident occurred on January 24, 2014, and she opposes the relief requested by defendants.
This action has been discontinued against named defendant Calandro Landscape & Design LLC by stipulation dated May 18, 2018.
This Court recognizes that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where the court finds as a matter of law that there is no genuine issue as to any material fact ( Andre v. Pomeroy, 35 NY2d 361[1974] ; Cauthers v. Brite Ideas, LLC, 41 AD3d 755 [2d Dept 2007] ), after viewing the evidence in the light most favorable to the non-moving party, herein the plaintiff ( Makaj v. Metropolitan Transportation Authority , 18 AD3d 625 [2d Dept 2005] ).
"[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 dangerous condition, nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it" ( Heck v. Regula , 123 AD3d 665, 666 [2d Dept 2014] ; see also Muzio v. Levittown Union Free School District , 172 AD3d 1212 [2d Dept 2019] ; Soloveychik v. Sea Isle Owners, Inc. , 160 AD3d 782 [2d Dept 2018] ; Smith v. New York City Housing Authority , 124 AD3d 625 [2d Dept 2015] ; Dhu v. New York City Housing Authority , 119 AD3d 728 [2d Dept 2014] ; Cruz v. Rampersad , 110 AD3d 669 [2d Dept 2013] ). This burden cannot be satisfied where an owner merely points to alleged gaps in a plaintiff's case ( McPhaul v. Mutual of America Life Insurance Company , 81 AD3d 609 [2d Dept 2011] ). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v. New York University Medical Center , 64 NY2d 851, 853 [1985] ).
Here, the defendants have failed to establish a prima facie showing that they lacked constructive notice of the alleged dangerous condition. Defendants' lack of maintenance records and inability to establish when the area of plaintiff's fall was last inspected prior thereto is fatal to their motion.
Plaintiff alleges in her Bill of Particulars that the dangerous and defective condition that caused her to slip was a build-up of ice on the brick walkway area in front of the entrance door to 358 Veterans Highway, Commack, New York (358), and that defendants had actual and constructive notice of the condition. It is plain from the submitted deposition testimony that the moving defendants did not have actual notice of the condition; however, plaintiff's testimony establishes that the icy condition on the walkway and icicles dripping down from the building's overhang onto the spot where she fell were present prior to January 24, 2014.
Specifically, plaintiff testified that she observed ice on the walkway on the day before her accident, and that as a result of observing the ice, she told her manager. The ice that plaintiff observed the day before her fall was located inside a puddle on the walkway, in the same location where she fell the next day. Plaintiff also testified that she observed ice on the walkway, at the place where she fell on January 24, 2014, on "several" other occasions prior to that date. Plaintiff's accident occurred approximately five feet from the entrance to 358. As for the icicles, plaintiff saw more than two, but less than seven icicles clustered together on the building's overhang, directly over the place where she slipped, and that they were dripping down onto the walkway on the day before her accident. Plaintiff also saw those icicles once or twice before that. In fact, plaintiff testified that on the day before her accident, water from the icicles dripped on her. Plaintiff also stated that she saw the icicles on the day she slipped, and that they were dripping on that day as well. Right after her accident, plaintiff looked up at the overhang, and the icicles that she saw were in the same location as the icicles she had seen the day before. Plaintiff described the longest icicle as being approximately twenty-four (24) inches in length and the shortest of them being approximately two (2) inches in length. According to plaintiff, the icicles were approximately thirty (30) feet above the ground level, on the second floor of the building.
Further according to plaintiff, there was ice melt/salt and/or sand on the first fifteen (15) feet of the walkway leading from the parking lot; however, there was no salt, sand or ice melt in the immediate area where she slipped. Plaintiff testified that the nearest ice melt in relation to where she slipped was approximately six feet down the walkway, closer to the parking lot. Moreover, plaintiff testified that she never saw any bags of ice melt in the lobby of 358, nor did plaintiff observe any ice melt on the walkway on the day before her accident, when she saw ice.
The ice that caused plaintiff to slip on January 24, 2014 was located inside a larger puddle on the walkway, underneath the icicles and over a drain that was set into the walkway. When plaintiff arrived at work on January 24, 2014, at approximately 10:00 a.m., she testified that it was approximately thirty (30) degrees outside. Although there were some snow flurries that had fallen some time after midnight, there was an inch or less of snow on the ground at that time. Plaintiff could see the asphalt of the parking lot through the snow. She also testified that there was no appreciable depth to the snow on the walkway leading to the east entrance of 358. When plaintiff left 358 at 1:00 p.m. for her lunch break, she walked along the same walkway as she did in the morning. At that time, she noticed a small puddle on the walkway and that the walkway was wet. The puddle was located approximately five feet from the entrance door. Plaintiff did not step in the puddle on her way to lunch, so she did not know if there was ice inside the puddle at that time.
At 1:30 p.m., plaintiff returned to 358 after her lunch break. She walked on the same walkway that she had twice walked on earlier in the day. At 1:30 p.m., the puddle was still present on the walkway, and plaintiff observed it from approximately two feet away. She continued walking on the path. Plaintiff did not walk in the center of the walkway, but on the right side to avoid the puddle. She stated that she did not think that she was going to make contact with the puddle (Errata sheet, p. 193).
When her left foot contacted the puddle, the ice broke, and her left foot slipped. Plaintiff was in the midst of stepping with her right foot, but when her left foot slipped, plaintiff's right foot went up in the air and she began falling backward. A pizza delivery man caught plaintiff under her right arm and prevented her from falling all the way to the ground; nevertheless, plaintiff testified that she immediately felt pain in her right knee and right foot.
Plaintiff described that there was ice measuring approximately 1½ feet by one (1') foot in size within the larger puddle. According to plaintiff, the ice was clear and less than one-half (1/2) inch thick. As noted, when plaintiff looked up immediately after her accident, she saw the icicles, and they were dripping onto the area where she had slipped on the ice inside the puddle.
After her accident, plaintiff went inside the building and reported the incident to her manager, who called the building's management. According to plaintiff, an individual named Hector responded within five minutes of the call. Plaintiff explained to him that she fell because of ice right outside the building, and, according to plaintiff, Hector called plaintiff a liar. Plaintiff also testified that Hector later placed a spackle bucket to catch the water that was dripping from the icicles. Plaintiff had seen Hector on a previous occasion working inside 358, fixing a toilet; therefore, she knew that he was from the management company.
Defendants' representative, Herman Udasin, testified that All Associates owned approximately eight commercial buildings whose tenants were various businesses, including medical offices and insurance entities, and that Shelly Management Corp. managed these properties. One of the buildings that was owned by All Associates and managed by Shelly is 358. Plaintiff's employer was a tenant in that building on the date that plaintiff fell. The building in question was sold in or about 2016, approximately two years after plaintiff's accident.
According to Mr. Udasin, no maintenance records were ever kept, and his one employee, Ibrahim Aksaska, a/k/a/ Dennis, was charged with repairing, cleaning, sweeping and shoveling snow/ice from the various properties. "Dennis"/Aksaska worked from 8:00 a.m. to 6:00 p.m. on weekdays and was on-call seven days per week. Specifically, Aksaska was charged with removing snow and ice from the walkways and paths surrounding the various buildings, not from the parking lots. Further according to Mr. Udasin, a sand/salt mixture was kept in buckets at the entrance/exits to the buildings; yet, when asked if there was a sand or salt bucket at the entrance to 358, Mr. Udasin answered, "I couldn't tell you."
Mr. Udasin's testimony concerning Aksaska's performance of ice and snow removal at the properties, including at 358, was of a general nature. Aksaska was supposed to shovel the walkways and spread the salt and sand mixture, "as needed," and Aksaska could hire anyone to help him in the event of large snowfall. Aksaska would pay the person and Udasin would reimburse Aksaska. There are no records of who Aksaska may have hired, and Udasin doubted that Aksaska created any records with respect to his maintenance duties. Mr. Udasin was asked if Mr. Aksaska ever used the name, "Hector," and Mr. Udasin answered, "[n]o." Mr. Udasin also testified that he was not aware of anyone named Hector associated with 358. As to Mr. Aksaska's performance of his duties clearing the walkways, Mr. Udasin testified that he did not inspect Aksaska's work. Mr. Udasin testified, "I have confidence if he said he had shoveled, it was shoveled."
Plaintiff testified that she fell outside the east entrance to 358, at approximately 1:30 p.m. on January 24, 2014. Mr. Udasin testified that in January 2014 he would go to 358 "almost daily" because it was close to his office located one or two buildings away. He would go to 358 to collect rent and see if "the conditions" were acceptable. He also testified that he would check the exterior walkways for ice, debris and maintenance issues, but if there was no snow, he would not check. According to Mr. Udasin, he did not maintain any record of when he visited 358, and he did not know when he last went into or out of the east entrance of 358 prior to plaintiff's accident. Mr. Udasin also did not know the last time that Mr. Aksaska or anyone assisting him performed any snow or ice removal at the east entrance to 358 prior to plaintiff's accident.
Regarding the procedure for any complaints made by tenants with respect to ice, snow, or maintenance issues, Mr. Udasin testified that a tenant would call his office, or just call Mr. Aksaska directly on his cell phone. No work tickets or records of complaints and repairs were kept. If the receptionist at Mr. Udasin's office received a complaint call, a message slip was made out and given to Mr. Udasin. After the particular issue was "taken care of," the slip was simply thrown away.
Mr. Udasin testified that 358's roof line extends three to four feet beyond the windows on the east side of that building and that a gutter system was installed on the roof line when the building was built some thirty-seven (37) years earlier. According to his testimony, Mr. Udasin never observed icicles forming along the roof line on the east side of 358, and no one ever informed him of that condition. Mr. Udasin also testified that he was not aware of any prior puddling near the entry/exit door of 358, or of anyone falling in that area in the five years preceding plaintiff's accident. Mr. Udasin also stated that both he and Mr. Aksaska were unaware of plaintiff's accident until this action was commenced, and that Aksaska never contacted him in January 2014 to advise Udasin that he responded to a tenant's office in connection with plaintiff's accident.
The affidavit of Ibrahim Aksakal fails to assist defendants in establishing their prima facie burden. Mr. Aksakal states his general responsibilities regarding snow and/or ice removal from the walkways located at 358, and he acknowledges that he would "receive a telephone call requesting services." He admits that he has no records regarding services performed at 358 on or about January 24, 2014, including the days prior thereto. He claims that he was "not aware" of any snow and/or ice conditions located at 358, and that he was "not on notice" of same prior to plaintiff's accident. He also claims that he never received a telephone call requesting services for snow and/or ice removal before the subject accident. Mr. Aksakal's affidavit is vague and conclusory, fails to mention the specific location of plaintiff's accident, whether he sanded/salted on January 24, 2014 and when he may have done so, and it also fails to address the icicles that plaintiff observed dripping down onto the location where she fell. Accordingly, his affidavit fails to adequately address the issue of lack of constructive notice.
His name in the deposition transcript of Mr. Udasin is spelled, perhaps incorrectly, as Aksaska.
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Considering that plaintiff testified to an icy condition that manifested itself over at least the course of two days if not more, the existence of contradictory testimony and defendants' inability to establish when the area where plaintiff slipped on ice was last inspected prior thereto, defendants have not sustained their prima facie burden, warranting denial of the motion. Additionally, questions of credibility are also raised, which are properly resolved by the trier of fact ( David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:6 , at 14; Donato v. ELRAC, Inc. , 18 AD3d 696 [2d Dept 2005] ; Frame v. Markowitz , 125 AD2d 442 [2d Dept 1986] ).
Since defendants have failed to establish their prima facie entitlement to summary judgment as a matter of law, there is no need to consider whether plaintiff's papers submitted in opposition are sufficient to raise a triable issue of fact (see Levin v Khan , 73 AD3d 991 [2d Dept 2010] ; Kjono v Fenning , 69 AD3d 581[2d Dept 2010] ).
Defendants' summary judgment motion is denied.
The foregoing constitutes the Decision and Order of this Court.