Opinion
No. 11–3657.
01-12-2012
Kathleen GILLIS and Paul Gillis, Plaintiffs, v. HERZOG SUPPLY CO., INC. and Walgreen Co., Defendants.
Mainetti, Mainetti & O'Connor, (Kevin C. Harp, Esq., of Counsel), Kingston, Attorneys for Plaintiffs. Law Office of Theresa J. Puleao, (Murry S. Brower, Esq., of Counsel), Albany, Attorneys for Defendants.
Mainetti, Mainetti & O'Connor, (Kevin C. Harp, Esq., of Counsel), Kingston, Attorneys for Plaintiffs.
Law Office of Theresa J. Puleao, (Murry S. Brower, Esq., of Counsel), Albany, Attorneys for Defendants.
MICHAEL H. MELKONIAN, J.
Plaintiffs Kathleen Gillis and Paul Gillis, derivatively (hereinafter collectively referred to as "plaintiffs"), commenced this action seeking damages for injuries Mrs. Gillis sustained when she tripped and fell as she stepped onto the curb in front of a pharmacy operated by defendant Walgreen Co. (hereinafter "Walgreens"). The record demonstrates that Walgreens leased the pharmacy from defendant Herzog Supply Co., Inc. Plaintiffs allege that the curb was dangerously defective in that it suffered from "irregularities, cracks, irregular fracturing, chipping, erosion, surface wear, sinking and upheaval of various sections and damage that would otherwise prevent the existence of an uneven defective and dangerous ground surface condition ..." Defendants Herzog Supply Co., Inc. and Walgreen Co. (hereinafter collectively referred to as "defendants") now move conjunctively for summary judgment dismissing the complaint on the ground that the defect was trivial as a matter of law and, therefore, not actionable.
On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor without the need for a trial (CPLR § 3212 ; Winegrad v. NYU Medical Center, 64 N.Y.2d 851 ; Zuckerman v. City of New York, 49 N.Y.2d 557 ). If movant meets this burden, the burden shifts to the party opposing summary judgment who must then establish the existence of material issues of fact, through evidentiary proof in admissible form, that would require a trial of the action (Zuckerman v. City of New York, 49 N.Y.2d 557 ). The Court's function is to view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, and to determine whether there is any triable issue of fact outstanding (Matter of Suffolk DSS v. James M., 83 N.Y.2d 178 ; Simpson v. Simpson, 222 A.D.2d 984 ; Boyce v. Vazquez, 249 A.D.2d 724 ).
"[W]hether a dangerous or defective condition exists on the property of another so as to create liability ‘depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury." ’ Trincere v. County of Suffolk, 90 N.Y.2d 976, 977. However, the "owner of a public passageway may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his [or her] toes, or trip over a raised projection" (Liebl v. Metropolitan Jockey Club, 10 A.D.2d 1006, 1006 ; see, Etkin v. Albany Med. Ctr., 77 AD3d 1228, 1228–1229 ; Trionfero v. Vanderhorn, 6 AD3d 903, 903 ). No minimum dimension automatically qualifies as an actionable defect; courts must consider whether the defect is trivial in light of all of the circumstances, "including the width, depth, elevation, irregularity and appearance of the defect along with the ‘time, place and circumstance’ of the injury" (Trincere v. County of Suffolk, 90 N.Y.2d 976, 978, quoting Caldwell v. Village of Is. Park, 304 N.Y. 268, 274 ).
In support of their motion for summary judgment to dismiss the complaint, defendants submit, inter alia, the pleadings, a copy of the examination before trial of the plaintiff, photographs of the accident site and the affidavit of Raymond VanWagenen, the Maintenance Supervisor for Herzog. According to her examination before trial, on the afternoon of August 16, 2011, Mrs. Gillis exited her vehicle in the parking lot of the Kingston Plaza and walked toward the entrance of "Walgreens," a store owned by defendant Herzog Supply, Co., Inc. (hereinafter "Herzog") and leased by defendant Walgreen Co. (hereinafter "Walgreens"). Plaintiff testified that as she stepped from the parking lot onto the curb adjoining the sidewalk, "my one foot went onto the red area and my other foot caught on the curb and I fell." She testified that her foot got caught "on the break in the curb." She testified that "the area that is not level with the other part surrounding it." She testified that as she walked towards the curb she "was focused on entrance door" and that she had a clear view from her vehicle to the entrance to Walgreens in that nothing was preventing her from seeing the curb before she stepped on it. She testified that the weather was sunny and warm on the day of incident. She testified that the front of her sneaker struck the curb and she "stubbed [her] toe on it."
In his affidavit, Mr. VanWagenen affirmed that he is employed as the Maintenance Supervisor for Herzog and is charge of insuring the premises are clean and well maintained. Mr. VanWagenen affirmed that he was assigned to examine and investigate the accident site and that he examined the photographs of the curb as well. He affirmed that he is familiar with the curb in question and that he is not aware of any repairs that have been made to it or any complaints made with respect to it. Mr. VanWagenen affirmed that indeed a "small chip of concrete was missing from the face of the curb near the top edge of the curb." He affirmed that he took measurements of the chip and opines that the subject chip in the curb was ".5 inches deep [f]rom the deepest portion the chip tapers up towards the flat face of the curb" and "5.5 inches wide." He further affirmed that "[t]he area is not hidden. During the day it can be seen very easily as a person approaches the sidewalk and takes a step up to the sidewalk. The concrete is colored red in the area and where the plaintiff claims to have tripped [and] the curb is not as high as a regular curb because it is taping down to a handicapped ramp which is essentially flush with the pacing area in the parking lot."
Here, defendants have met their initial burden (CPLR § 3212[b] ; Winegrad v. NYU Medical Center, 64 N.Y.2d 851, 853 ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562 ). Scrutiny of the photographs identified by plaintiff as accurately reflecting the condition of the curb at the time of her fall, and specifically at the precise spot depicted therein over which plaintiff testified she tripped, supports the conclusion that, as a matter of law, the alleged defect, which has no characteristics of a trap or nuisance, is too trivial to be actionable as a matter of law (see, Castle v. Six Flags, Inc., 81 AD3d 1137, 1138 ; Trionfero v. Vanderhorn, 6 AD3d 903, 903–904 ; Maloid v. New York State Elec. & Gas Corp., 257 A.D.2d 712, 713 ).
Thus, it falls to plaintiff to demonstrate that the law does not support summary judgment and/or assemble and present facts sufficient to require a trial of any issue of fact to defeat the motion (Zuckerman v. City of NY, 49 N.Y.2d 557, 562 ).
In opposition, plaintiffs offer only an affirmation by an attorney who does not have personal knowledge of the events in question. Such evidence is speculative, conclusory in nature, lacks probative value, and fails to set forth sufficient material facts to raise a genuine triable issue (see, Rossi v. C.C.O. Equip., 200 A.D.2d 933 ). The submission of an attorney's affirmation is insufficient to defeat a motion for summary judgment once a party has established their entitlement to judgment as a matter of law (see, S.J. Capelin Associates, Inc. v. Globe Mtg. Co., 34 N.Y.2d 338. In an effort to defeat the motion for summary judgment, plaintiffs' counsel asserts that "the defect was large enough to entrap Mrs. Gillis's right foot." The assertion is without merit. The record indicates that the cause of the fall was plaintiff's trip over a trivial defect. An expert's affidavit has not been submitted in support of the contention that the curb was defective. Notably, plaintiff fails to submit her own affidavit in opposition to defendants' motion for summary judgment.
Accordingly, defendants' motion is granted.
This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the defendants. All other papers are delivered to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.
SO ORDERED.
Papers Considered:
Notice of Motion dated August 31, 2012;
Affirmation of Murry S. Brower, Esq., dated August 31, 2012, with exhibits annexed;
Affidavit of Raymond VanWagenen dated July 25, 2012, with exhibits annexed;
Affirmation of Kevin C. Harp, Esq., dated September 26, 2012;
Affirmation of Murry S. Brower, Esq., dated October 3, 2012.