Opinion
No. 700295/2010.
2012-06-19
Lorraine FEDERICI, Plaintiff, v. RASPBERRY FARM MARKET, INC., Defendant.
ROBERT J. McDONALD, J.
This is an action for damages for personal injuries sustained by the plaintiff, Lorraine Federici, on June 17, 2010, when she slipped and fell on an allegedly slippery floor while shopping at the Raspberry Farm Market, located at 150th Street and 14th Avenue, Queens County, New York. As a result of the fall she sustained a puncture wound to the back of her right hand when the metal handle of the basket she was carrying pierced her hand.
This action was commenced by the filing of a summons and complaint on September 16, 2010. Issue was joined by service of the defendant's verified answer on October 5, 2010. The defendant now moves for an order pursuant to CPLR 3212(b), granting summary judgment on the issue of liability and dismissing the complaint. A defendant who moves for summary judgment in a premises liability 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 (see Bloomfield v. Jericho Union Free School Dist, 80 AD3d 637 [2d Dept.2011] ). The defendant contends that it is not liable because the plaintiff is unable to identify any defective condition on the floor that caused her to fall other than alleging that the floor was “high” gloss” and appeared “very shiny” and had a “high sheen.” In support of the motion, the defendant submits an affidavit from counsel, Stephen E. Kwan, Esq., a copy of the pleadings; plaintiff's verified bill of particulars; and the transcripts of the examinations before trial of the plaintiff, Lorraine Federici and the defendant, by Raspberry Farm Market employee, Taekyong Kim.
In her verified bill of particulars the plaintiff states that she slipped on a highly polished or waxed floor and that the defendant was negligent in allowing a slippery and defective condition to exist on the floor.
The plaintiff, age 56, testified at her examination before trial, taken on June 15, 2011, that on June 17, 2010, she was shopping with her sister in Raspberry Farm, a grocery/fruit store located in her neighborhood. She stated that she has been shopping in the store since 2006 and she presently shops there approximately every 7–10 days. When she first arrived at the store, she picked-up a green plastic carrier basket with a metal handle. She placed two watermelon quarters in the basket and continued to the deli department to obtain additional items. After obtaining items at the deli, she was proceeding towards the cash register with the basket in her hand when she slipped and fell in the aisle. When asked if she noticed anything with respect to the floor prior to the accident she stated: “I noticed that they are very high-glossed, that's it, they shine and they always look very clean, a very high sheen to them.” She said that she noticed the floors, which are covered with linoleum tile, to be in that same condition on other occasions when she shopped there. When asked what caused her to fall she responded, “I have no idea. I don't know, I really don't know.” She also stated that she believed it was the “shine of the floor. I think the floor was very slippery..because it was high gloss, it was very shiny.” The plaintiff testified that her fall was not due to any liquid on the floor and she did not know if her fall was caused by any item on the floor. Ms. Federici testified that prior to the accident she never made any complaints about the floor. She stated that as a result of the fall the handle of the basket detached and pierced the back of her right hand near the knuckle between her middle finger and ring finger. She left the scene in an ambulance and was taken to the emergency room where the wound was cleaned, she was given a tetanus shot and pain medication and then released. Two or three weeks after the accident, plaintiff returned to the store where an unidentified worker told her that he had previously told his boss about the floor because he almost fell “a hundred times.” The worker stated to her that he believed the floor was slippery because “they put something on the floor.”
On September 20, 2011, the plaintiff took the deposition of Taekyong Kim, the manager of Raspberry Farm. When asked how the floors are maintained he stated that they are cleaned on a daily basis by store employees using a broom and mopped with Clorox. He testified that the floors are waxed on a biweekly basis by an outside company. He did not know what substance the waxing company used on the floors. He said that on the date of the accident he observed the plaintiff standing outside the store with blood on her wrist. He does not remember if he took an accident report. He asked the plaintiff what happened but he does not remember what she said. He called for an ambulance. He does not remember how the accident occurred. He stated that to his knowledge, from the time he started working in 2009, no one has ever slipped on the floor and he never received a complaint about a slippery floor.
Defendant also submits an affidavit from Mr. Kim dated February 8, 2012, in which he states that from the Spring of 2009 to the date of the accident, “I have never received a complaint about the floor being slippery, no customer has ever slipped on the floor and no employee has ever informed me about the floor being slippery. Prior to June 2010, no employee has been injured due to slipping on the floor.”
In his affirmation in support of the motion for summary judgment, defendant's counsel contends that the plaintiff has failed to identify any dangerous or hazardous condition on the floor which caused her to fall. Counsel contends that the courts have consistently held that the fact that a floor may be slippery by reason of its smoothness or polish, in the absence of a negligent application of wax or polish, does not give rise to a cause of action for negligence. Here, counsel states that there is no evidence in the record demonstrating that the defendant was negligent in the application of wax or polish to the floor or that it affirmatively created a hazardous condition (citing Lincoln v. Laro Serv. Sys., 1 AD3d 487 [2d Dept.2003][a defendant is entitled to judgment as a matter of law where the plaintiff is unable to identify any defect in the floor upon which he or she fell other than to describe it as smooth or shiny]; Lee v. Rite Aid, Inc., 261 A.D.2d 368 [2d Dept.1999][it is well settled that in the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be shiny or slippery does not support a cause of action to recover damages for negligence, nor does it give rise to any inference of negligence]; Guarino v. La Shellda Maintenance Corp., 252 A.D.2d 514 [2d Dept.1998]; Lathan v. NCAS Realty Mgt. Corp., 240 A.D.2d 474 [2d Dept.1997]; Sapinkopf v. Marriott Host, 224 A.D.2d 512 [2d Dept.1996] ).
Counsel contends, therefore, that defendant is entitled to summary judgment because the only reason plaintiff provides for slipping is that the floor was high gloss, very shiny and slippery. Counsel submits that there is no evidence in the record that would raise a question of fact as to whether there was a negligent application of wax or polish on the floor. Counsel also contends that the proof shows that defendant did not create the slippery condition as they only mop the floor and rely on an outside company to do the waxing. In addition, there is no proof in the record that there were any prior accidents or prior complaints regarding the condition of the floor. Defendant also submits that the statements of an unidentified employee testified to by the plaintiff are hearsay and cannot be deemed to be an admission binding on the store because there is no evidence that the employee was authorized to speak on behalf of the store. (citing Grant v. Radamar Meat, 294 A.D.2d 398 [2d Dept.2002] [statements made by a store employee after the accident are not admissions binding on the store because there is no evidence that the employee was authorized to speak on behalf of the store and, accordingly, they are inadmissible] ).
In opposition to the motion, Gerard Misk, Esq., states that the evidence submitted by the defendant raises a question of fact as to whether or not the floor in defendant's premises was defective and whether defendant had notice of such defect. Counsel states that contrary to the defendant's assertions, plaintiff does not blame the condition on any waxing or polishing. Counsel claims that the only allegation by the plaintiff is that the floor was inordinately slippery and this in and of itself constitutes a dangerous condition. Counsel claims that notice of the slippery condition was effectively provided to the defendant as evidenced by the affidavit of store employee, Joe Amato, dated March 30, 2012. In his affidavit, Mr. Amato states that he was employed by Raspberry Farm Market from 2004 through 2011. He states that during his employment at said store he had occasion to observe many customers and employees fall in the same manner as the plaintiff as a result of slippery conditions existing at the store. He states that he himself slipped as a result of the slippery floor. In addition, his affidavit states that that he personally informed the management on a number of occasions that the condition of the floor was dangerous and hazardous and that he, as well as customers and employees, slipped as a result.
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 N.Y.2d 557[1980] ). A defendant owner or entity who is responsible for maintaining a premises who moves for summary judgment in a slip-and-fall or trip-and-fall case involving the property 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. “In a trip and fall case, a plaintiff's inability to identify the cause of his or her fall is fatal to his or her cause of action, since, in that instance, the trier of fact would be required to base a finding of proximate cause upon nothing more than speculation” (Melnikov v. 249 Brighton Corp., 72 AD3d 760[2d Dept.2010]; Arzola v. Boston Props. Ltd. Partnership, 63 AD3d 655 [2d Dept.2009]; Bruk v. Razag, Inc., 60 AD3d 715 [2d Dept.2009] ).
Upon review and consideration of the defendant's motion, the plaintiff's affirmation in opposition, and the defendant's reply thereto, this court finds that the defendant established, prima facie, that it did not create a dangerous condition or have actual or constructive notice of the specific condition which allegedly caused the plaintiff to fall (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836 [1986] ). Here, plaintiff argues only that the floor was inordinately slippery without ascribing any cause to the slippery condition. Although the plaintiff states in her bill of particulars that she slipped on a highly polished or wax floor, her attorney states that it wasn't the polish or wax that caused her to fall, but rather, an inherent slippery condition. Plaintiff testified that although she did not know why she fell, she believed that it was because the floor was high gloss and because of the shine of the floor. Further, plaintiff did not submit an affidavit from an expert providing a reason why the floor tiles themselves were hazardous or inherently slippery. The courts have consistently held that “absent proof of a reason for a fall other than the “inherently slippery” condition of a floor, no cause of action sounding in negligence can be sustained” (Goldblatt v. LaShellda Maintenance Co., 278 A.D.2d 451 [2d Dept.2000]; also see Cietek v. Bountiful Bread of Stuyvesant Plaza, Inc ., 74 AD3d 1628 [2d Dept.2010] [it is well settled, however, that a cause of action for negligence cannot be maintained against a building owner solely on the basis of an inherently slippery floor]; Kudrov v. Laro Servs. Sys., Inc., 41 AD3d 315 [1st Dept.2007] [absent proof of the negligent application of wax or polish, the fact that a floor is slippery by reason of its smoothness or having been polished does not give rise to an inference of negligence]; Khaimova v. Osnat Corp., 21 AD3d 401[2d Dept.2005]; Lincoln v.. Laro Serv. Sys., 1 AD3d 487 [2d Dept. 200; Brandefine v. National Cleaning Contr., 265 A.D.2d 441 [2d Dept.1999]; Bouloukos v. Vassar Bros. Hosp., 262 A.D.2d 342[2d Dept.1999][the fact that a floor is slippery by reason of its smoothness or polish, in the absence of a negligent application of wax or polish, does not give rise to a cause of action or give rise to an inference of negligence”]; Lee v. Rite Aid, 261 A.D.2d 368 [2d Dept.1999]; Guarino v. La Shellda Maintenance Corp., 252 A.D.2d 514 [2d Dept.1998] ).
In opposition, the plaintiff failed to submit evidence to raise a question of fact as to whether the defendant either created a hazardous condition or had actual or constructive notice of the existence of a hazardous condition. The affidavit of Joe Amato does not provide sufficient proof of notice of a dangerous condition as the affidavit only provides a general allegation that the floor was slippery, fails to state that he complained to management regarding the specific area where the plaintiff fell, and failed to provide details as to where and when the prior falls occurred, the names of the people involved or to whom the prior accidents were reported (see Stone v. Long Island Jewish Med. Ctr. Inc., 302 A.D.2d 376 [2d Dept.2003] ).
Accordingly, for all of the aforesaid reasons, it is hereby
ORDERED, that the defendant's motion for summary judgment is granted and the plaintiff's complaint is dismissed.