Summary
In Fox v. Chelsea, 171 Mass. 297, the motion for a new trial was on the ground that the verdicts for the plaintiffs were against law and evidence, and the weight of evidence.
Summary of this case from Garrity v. HigginsOpinion
No. 12182.
2012-06-13
Diana FOX, Plaintiff, v. 111 CHELSEA COMMERCE LP., 111 Chelsea LLC, Collins Building Services Inc., Jamestown Management Corporation and Taconic Management Company, LLC, Defendants.
Mallilo & Grossman, Brooklyn, attorney for Plaintiff. Perez & Varvaro, Uniondale, attorney for Defendant.
Mallilo & Grossman, Brooklyn, attorney for Plaintiff. Perez & Varvaro, Uniondale, attorney for Defendant.
DAVID I. SCHMIDT, J.
Defendants 111 Chelsea Commerce, LP (111 Chelsea), Jamestown Management Corporation (Jamestown) and Taconic Management, LLC (Taconic, and collectively, the moving defendants), move for an order directing the entry of summary judgment to dismiss the complaint and all cross claims. In the alternative, moving defendants seek an order granting conditional summary judgment on contractual and/or common law indemnity grounds over and against defendant Collins Building Services, Inc. (Collins).
Separately, defendant Collins cross-moves for summary judgment to dismiss the complaint and all cross claims.
On the date of the accident, 111 Chelsea owned the building; Jamestown was an investment partner in ownership of the building; Taconic served as the managing agent; and Collins was an outside vendor under contract with the building to clean and perform basic maintenance work to the common areas of the building.
This action arises out of an accident that occurred when plaintiff slipped as she stepped into a revolving door to enter the building located at 111 8th Avenue/76 9th Avenue in Manhattan.
According to plaintiff, her slip and resulting injuries were caused by water that had accumulated on the floor of the revolving door. Plaintiff alleges that defendants were negligent in either creating or permitting the unsafe condition to develop and remain. For the following reasons, both the motion and cross motion to dismiss the complaint, are granted. I. Background A. Relevant Testimony
The subject building occupies a full city block and can be entered from both 8th Avenue and 9th Avenue.
At her examination before trial, plaintiff testified that at around 9:00 a.m. on the morning of October 28, 2009, she arrived at the subject premises where she was employed by a tenant of the building. See affirmation of Denise A. Cariello (Cariello aff.), Ex. C, pp. 14–15. Plaintiff further testified that at the time of her arrival, it had been “moderately raining.” Id., p. 16. Because of the weather, she was carrying an umbrella and wearing riding boots that she used as rain boots. Id., pp. 16, 19. To gain entry to the building, plaintiff stepped into the revolving door, whereupon her feet slipped out from under her, causing her to sustain injuries. Id., pp. 24–25. Immediately after her accident, plaintiff observed that the floor within the revolving door compartment was covered with a thin film of water approximately an 1/8th of an inch in depth. Id., p. 32. According to plaintiff, it was this condition that caused her to slip. Id., p. 3.
Plaintiff testified that on the morning of her accident she observed mats on the floor of the lobby, but did not recall any mats placed outside the building on the sidewalk before the entranceway. Id., pp. 34, 39. She stated that there were no wet-floor caution signs of any kind in the lobby that morning or outside the building near the entranceway. Id., p. 49. She further stated that, on prior occasions when it had been raining, caution signs would be set up in the lobby. Id., pp. 49–50.
After her slip, plaintiff went up to her office and called building services to report the incident. Id., p. 43. While she could not recall the name of the person she spoke with, plaintiff testified that she remembered their conversation “very clearly,” and that she was told that “people have been falling a lot in that doorway lately.” Id., p. 45. Plaintiff further testified that she slipped “probably twice or three times” over the year and a half she had worked in the building prior to the accident, however, she could not state with any certainty whether it had been raining on any of those occasions. Id., p. 47. Plaintiff also testified that three co-workers complained of slipping in that exact doorway on prior occasions but that none of them were willing to come forward on her behalf. Id., pp. 58–59. In this connection, plaintiff attested that, of these three, one did not notify building services of a dangerous condition and she was unsure whether the other two had filed an incident report. Id ., p. 60. Plaintiff did not say whether her co-workers informed her as to the circumstances or conditions surrounding their respective incidents. Id., pp. 59–60.
At her examination before trial, Danielle Davis, the assistant property manager for the building and a Taconic employee, testified that, on the date of the incident, Collins was the outside vendor that was under contract with the building to, among other things, clean the common areas, including the lobby. Cariello aff., Ex. F, pp. 14–15. Ms. Davis stated that, although the building had a protocol, requiring building employees to put down mats and caution signs on the floor of the lobby during inclement weather, that policy did not include the floor in the revolving doors because “we couldn't have any mats in there.” Id., pp. 44–45. She also testified that she was unaware of any prior complaints or accidents involving slips and falls in any of the revolving doors to the building or in any of the lobbies of the building. Id., pp. 42–43, 45.
Carlos Ocampo, at his examination before trial, testified that he was the account project manager for Collins on the date of the incident. Cariello aff., Ex. G, pp. 8–9. He attested that it was the responsibility of Collins employees to sweep and dry mop the floor within the revolving door where the accident happened and that this was done every half hour to forty-five minute period. Id., pp. 43, 46. He further testified that a Mr. Walter Peterson, was the “lobby starter” in charge of the area of the building where the accident occurred and that Mr. Peterson was on duty in the lobby as early as 7:00 am on the morning of the accident. Id., pp. 19–21. According to Mr. Ocampo, it would have been Mr. Peterson's responsibility to sweep and dry mop the lobby on the subject date but he could not testify as to whether or not Mr. Peterson had actually fulfilled those duties that morning. Id., p. 45. Although he could not recall whether mats and/or warning signs had been placed in the lobby the morning of plaintiff's accident, Mr. Ocampo confirmed Ms. Davis's testimony that Collins employees would, as part of their standard procedure, put such items in place during inclement weather and that it was his personal responsibility to do so. Id., pp. 35–39. During Mr. Ocampo's examination, plaintiff's counsel “reserve[d] the right to depose Mr. Walter Peterson, who I believe is still an employee of Collins.” Id., p. 51.
Although Mr. Peterson was not subsequently deposed, the record contains two statements made by Mr. Peterson in the form of an affidavit and supplemental affidavit sworn to, respectively, on April 10, 2012 and May 4, 2012.
Mr. Peterson attests that on the morning of plaintiff's accident he arrived at work at 7:00 a.m. and, as part of his regular duties and responsibilities, swept and mopped the lobby, including the area of the revolving door at issue, every half hour to forty five minutes. See affidavit, ¶¶ 2, 3; see supplemental affidavit, ¶¶ 2, 3. Mr. Peterson also states that he placed mats and warning signs on the floor of the lobby because it was raining that morning and that these were already in place at the time that plaintiff claims to have slipped. See affidavit, ¶¶ 4, 5; see supplemental affidavit, ¶¶ 4, 5, 8.
The affidavit and supplemental affidavit are annexed to Collins' counsel's affirmation in opposition to the moving defendants' motion.
B. Procedural History
Plaintiff commenced this action by filing a verified summons and complaint. Cariello aff., Ex. A. The moving defendants appeared in the action by serving a verified answer with affirmative defenses and cross claims. Id., Ex. B. Defendant Collins appeared in the action by serving its verified answer with affirmative defenses and cross claim. Id., Ex. C.
II. Discussion
To prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidentiary proof in admissible form. See Zuckerman v. City of New York, 49 N.Y.2d 557, 560 (1980). Once this showing has been made, the burden shifts to the party opposing the motion to rebut the prima facie showing by producing evidentiary proof in admissible form sufficient to require a trial of material issues of fact. See Kaufman v. Silver, 90 N.Y.2d 204, 208 (1997). Additionally, in deciding the motion, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference. Negri v. Stop & Shop, 65 N.Y.2d 625, 626 (1985).
Moving Defendants' Summary Judgment Motion to Dismiss the Complaint
In its affirmation in support of its cross motion to dismiss the complaint, Collins adopts, by reference, the legal arguments raised by the moving defendants in support of that branch of their motion for summary judgment on the complaint. See affirmation of Michele D. Rach in support of cross motion, ¶ 20.
A property owner may be held liable for a slip-and-fall incident involving a wet condition on its property only upon a showing that the property owner created a dangerous condition or had actual or constructive notice of it. Ruck v. Levittown Norse Assocs., LLC, 27 AD3d 444, 445 (2nd Dept 2006). However, it is well settled that a defendant owner is “not required to cover all of their floors with mats, nor to continuously mop up all moisture resulting from tracked-in precipitation.” Dubensky v. 2900 Westchester Co., LLC, 27 AD3d 514, 514–15 (2nd Dept 2006) (citations and internal quotation marks and alterations omitted); Ford v. Citibank, N.A., 11 AD3d 508, 509 (2nd Dept 2004); Yearwood v. Cushman & Wakefield, 294 A.D.2d 568, 568–69 (2nd Dept 2002) (property owner “not obligated to provide a constant remedy to the problem of water being tracked into a building in rainy weather”). Moreover, “[a] general awareness that water was likely to be tracked on the lobby floor in rainy weather is insufficient, without more, to establish constructive notice of the particular wet condition that allegedly caused the plaintiff to slip.” Rogers v. Rockefeller Grp., 38 AD3d 747, 750 (2nd Dept 2007).
In support of their motion, moving defendants argue that they have established a prima facie case for judgment as a matter of law in light of plaintiff's admission that she slipped on water while entering the building as it was raining. Given this testimony, the moving defendants contend that, under the “storm in progress” doctrine, they were under no duty to try and prevent rainwater from entering the floor of the revolving door, especially since the revolving door plaintiff stepped into, was open to the street.
Under the “storm in progress” doctrine, a property owner is excused from liability for accidents occurring as a result of the accumulation of precipitation on its premises until a reasonable period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm. See e.g. Powell v. MLG Hillside Assoc., 290 A.D.2d 345, 345 (1st Dept 2002).
In opposition, plaintiff argues that defendants have failed to come forward with any evidence that a “storm” was in progress at the time of the accident. Giving little weight to her own testimony that it was “moderately raining” when she arrived at the building, plaintiff contends that defendants must submit meteorological reports to support a prima facie case based on the “storm in progress” rule. However, the court's view is that such evidence is only necessary where there is some dispute over the weather conditions existing at the time of an alleged incident. For example, in Dowden v. Long Is. R.R., 305 A.D.2d 631 (2nd Dept 2003), cited by plaintiff, meteorological reports were submitted by the defendant property owner to rebut plaintiff's “speculative claim” that he slipped on preexisting ice. Id. at 632. Here, given plaintiff's own testimony, there does not appear to be any issue of fact as to whether it was raining at the time that plaintiff had her accident. Nor does the record reflect any dispute as to whether the water accumulation in the doorway resulted from something other than rainfall. Hence, plaintiff's testimony is sufficient proof of the weather conditions on the morning of her accident.
Nevertheless, plaintiff argues that while the “storm in progress” rule extends the time in which a defendant is said to be on constructive notice of a dangerous condition, it does not excuse a property owner from liability where a defendant already had actual notice of the dangerous condition. In this regard, plaintiff tries, and fails, to create a question of fact by testifying that several of her co-workers previously slipped in the lobby. However, as plaintiff acknowledges, she was not told any of the particulars, including whether it had been raining at the time of these alleged incidents. To the extent that plaintiff testified that she spoke with a building employee on the day of the accident (presumably, Ms. Davis) who informed her that others had fallen in the same doorway, plaintiff admits that she was not told if these incidents occurred while it was raining. By contrast, Ms. Davis testified that, to her knowledge, the building never received complaints about the condition of the floor in the revolving doors prior to plaintiff's accident.
Next, plaintiff contends that defendants have failed to offer evidence that the mats that were placed inside the lobby just outside the revolving doorway was a precautionary measure and not in response to actual knowledge of a dangerous condition in the revolving doorway. However, this argument fails to raise a triable issue of fact, given the respective testimonies of Ms. Davis and Mr. Ocampo, supported by plaintiff's own observation, that it was standard operating procedure for mats to be placed throughout the lobby during inclement weather.
Finally, plaintiff argues that although the law does not impose a continuous duty on a building owner to continuously mop areas where precipitation from a storm might accumulate, defendants have not provided any evidence that they mopped the area in question even once. In making this argument, plaintiff maintains that the Peterson affidavits, sworn to after the note of issue was filed, are self-serving, contradict prior testimony, and, as a result, must be disregarded by the court on this motion. Plaintiff is mistaken.
The court's review of the affidavits reveals that, on the whole, the testimony contained therein confirms the testimony given by Mr. Ocampo. For example, Mr. Ocampo identified Mr. Peterson as the “lobby starter” for the building and the Collins employee responsible for maintaining the lobby area on the date of the complained of accident. Mr. Ocampo further testified as to Mr. Peterson's duties and responsibilities as well as the procedures to be followed for inclement weather. Therefore, obtaining an affidavit from Mr. Peterson, who was identified during Mr. Ocampo's deposition as being present on the date of the subject incident and possessing knowledge of what steps were taken that morning, prior to the incident, is in no way improper. In addition, and as mentioned previously ( supra, Part I.A.), plaintiff's counsel reserved the right to depose Mr. Peterson upon learning of his identity during Mr. Ocampo's examination. His failure to do so before filing the note of issue is not a reason to bar consideration of Mr. Peterson's testimony. Because the court concludes that the Peterson affidavits are properly before it, they constitute evidence as to Mr. Peterson's personal knowledge of the actions he took on the subject date, i.e., that he mopped every 30 to 45 minutes in the area where the accident took place and did so beginning at 7:00 a.m.
In short, plaintiff has failed to raise a triable issue of fact to counter defendants' showing that they did not create or have actual or constructive notice of the dangerous condition, and thus, defendants are entitled to summary judgment to dismiss the complaint. See Miguel v. SJS Assocs., LLC, 40 AD3d 942, 944 (2nd Dept 2007).
Accordingly, the court need not reach that branch of moving defendants' motion seeking alternative relief in the form of conditional summary judgment on indemnity grounds against Collins.
Accordingly, it is
ORDERED that defendants 111 Chelsea Commerce, LP, Jamestown Management Corporation and Taconic Management, LLC's motion for summary judgment dismissing the complaint and cross claims, is granted; and it is further
ORDERED that defendant Collins Building Services, Inc.'s cross motion for summary judgment dismissing the complaint and cross claims is granted; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.