Opinion
Index No. 88063
02-02-2021
STEPHANIE A. HARVEY, Plaintiff v. FAMILY VIDEO MOVIE CLUB, INC., Defendant
Jeffrey A. Black, Esq, Attorney for Plaintiff Michael T. Gioia, Esq. Defendant
Unpublished Opinion
Jeffrey A. Black, Esq, Attorney for Plaintiff
Michael T. Gioia, Esq. Defendant
DECISION & ORDER
TERRENCE M. PARKER JUSTICE
On February 17, 2017 at approximately 6:20 P.M., Plaintiff was walking on a ramp with a non-slip pad outside the Family Video Movie Club in Olean, New York, when she slipped and fell and suffered personal injuries. On May 2, 2019, plaintiff commenced the instant lawsuit seeking compensation for the injuries sustained. (DOC 1) In Plaintiff's Bill of Particulars she claims that "[t]he gripped section was worn creating the slick surface. In addition, there was ice/sleet across the ramp and in the gripped area.” (Doc 36) Plaintiff alleged numerous allegations of Defendant's negligence including, but not limited to failing to: maintain the premises in a reasonably safe condition; adequately conduct snow and ice removal operations; shovel, salt and/or sand the premises; observe a dangerous condition on the premises; make timely and adequate inspections of the premises to discovery dangerous conditions. (DOC 36)
Following the filing of a note of issue and statement of readiness, Defendant filed a motion for summary judgment. (DOCS 31-42) Plaintiff opposed the motion. (DOCS 43-55). The Court has considered all the papers submitted and heard oral argument of counsel on January 28, 2021.
On a motion for summary judgment, the moving party bears the initial burden of establishing a prima facie showing of entitled to judgment. Once the moving party establishes its prima facie entitlement to summary judgment, the burden shifts to the nonmoving party to raise a triable question of fact. (Gern v Basta, 26 A.D.3d 807 [4th Dept 2006], Iv denied, 6 N.Y.3d 715 [2006]). Courts are required upon a defendant's motion for summary judgment to view the evidence in the light most favorable to the plaintiff. (Evans v Mendola, 32 A.D.3d 1231 [4th Dept 2006]).
Defendant contends that summary judgment should be granted because there are no allegations that Defendant created the alleged condition; that there was no evidence Defendant had actual or constructive notice of the condition before Plaintiff fell; and there was a "storm in progress" at the time of the accident. Defendant contended the non-slip pad was not dangerous or defective and was scientifically designed to offer increased traction, and it is not feasible to allege it constituted a slippery area as compared to the rest of the sidewalk as contend by Plaintiff. Defendant further contends that since there was no previous accident in the area, no actionable negligence can be established.
In support of the "storm in progress" argument, Defendant submitted an affidavit of certified consulting meteorologist, Howard Alschule. Mr. Alschule based his opinion on climatological data, hydrometeorological automated data, Doppler radar images and weather bulletins.
Plaintiff submitted deposition testimony of herself and her fiance who was with her at the time of the accident. Both testified that it was not snowing at the time of the accident and that the parking lot had been plowed and salted whereas the ramp was not. In terms of notice, Plaintiff testified that when she reported the accident to Defendant's employee, the employee remarked that she knew they should have salted.
In terms of a defective or dangerous condition, Plaintiff submitted photos of the worn non-slip pad showing the anti-slide knobs were worn. Plaintiff also submitted the affidavit of Richard Hughes, a licensed professional engineer, who opined that the area in question was so deteriorated that the ramp no longer provided a sufficient co-efficient of friction to prevent a pedestrian from slipping. The expert further opined that the condition of the ramp had been in existence for months if not years and would have been readily observable in any reasonable inspection. Mr. Hughes opined that the failure to conduct periodic inspections was a severe deviation from industry standard.
Defendant has the burden on summary judgment to prove that it was not aware of the conditions of the ramp or that the non-slip pad had become so worn to constitute a hazard. Defendant did not provide any inspection reports or proof of any inspections. Defendant also contended the non-slip pad was not dangerous or defection and any defect was trivial.
[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. There is no 'minimal dimension test' or per se rule that a defect must be of a certain minimum height or depth in order to be actionable. Although, in some instances, the trivial nature of the defect may loom larger than another element, ... [a] mechanistic disposition of a case based exclusively on the dimension of the [pavement] defect is inappropriate. Thus, a determination of whether a particular defect is actionable requires examination of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury. Here, we conclude that defendant failed to meet its initial burden of establishing that the defect was trivial and nonactionable as a matter of law. (citations and internal quotation marks omitted)
(Lupa v City of Oswego, 117 A.D.3d 1418, 1418-1419
The Court finds that Defendant did not meet its burden of establishing the defect was trivial. Even assuming arguendo the burden was met, Plaintiff has raised a question of fact regarding the condition of the area, and whether Defendant had constructive notice of the condition of the non-slip pad as well as the alleged snowy/icy condition of the area.
Defendant did not meet is initial burden of establishing Plaintiff's injuries were the result of an ongoing storm or for a reasonable time thereafter. (Ayers v Pioneer Cent. Sen. Dist, 187 A.D.3d 1625 [4th Dept 2020]). Even assuming arguendo that Defendant met its burden, Plaintiff raised an issue of fact whether the storm had abated enough to allow remediation efforts to take place since the plowing contractor was able to plow and salt the parking lot. (Patricola v General Motors Corporation, 170 A.D.3d 1506 [4th Dept 2019]).
Defendant's motion for summary judgment is denied.
This shall constitute the Decision and Order of the Court. Submission of an Order by the parties is not necessary. The service of this Decision and Order by the Court to counsel shall not constitute Notice of Entry.