Opinion
101630/2010
09-06-2018
Yolanne JEANTY, Plaintiff, v. The NEW YORK CITY HOUSING AUTHORITY, Defendant.
Movant NYCHA: Michael G. Dempsey, Leahey & Johnson, PC, 120 Wall Street, New York, NY 10005 Opposing motion and cross-moving (plaintiff): Michael T. Kusz, Esq., Hecht Kleeger & Damashek, P.C., 19 West 44th Street, Suite 1500, New York, NY 10036
Movant NYCHA: Michael G. Dempsey, Leahey & Johnson, PC, 120 Wall Street, New York, NY 10005
Opposing motion and cross-moving (plaintiff): Michael T. Kusz, Esq., Hecht Kleeger & Damashek, P.C., 19 West 44th Street, Suite 1500, New York, NY 10036
Carmen Victoria St. George, J.
Plaintiff commenced this personal injury action on April 23, 2010. According to the complaint, on September 15, 2009 at approximately 8:00 p.m., plaintiff left the building located at 1970 Amsterdam Avenue in New York, where she was a home health worker for one of the residents. To leave through the main entrance, plaintiff had to push a round button next to the door and then push open the door itself. As she pushed the door, the armature, a piece of magnetic metal which was part of the locking mechanism to the door, fell and struck her on the head. Defendant New York City Housing Authority owns the building. The parties have completed discovery, and plaintiff filed the note of issue on September 15, 2017. Currently, defendant moves for summary judgment and plaintiff cross-moves for the same relief. For the reasons below, the Court denies both the motion and the cross-motion.
Defendant argues summary judgment is warranted because it did not cause or create the condition and did not have actual or constructive notice of the alleged defect in the subject door. In support, defendant cites plaintiff's 50-hearing testimony, in which she stated that she had used the door on hundreds of occasions without incident, and that she had never notified anyone of a problem. It further annexes copies of building inspection reports, daily caretaker's checklists, and supervisor logbooks, which shows that a week earlier there had been a problem with the door and allegedly it had been repaired and that a month prior to the incident the door had been in good repair. In addition, it annexes the deposition testimony of Kimball Brown, a superintendent at the development which includes the building. Mr. Brown stated that the magnetic locking mechanisms are not changed regularly but only when they stop working due to wear and tear. According to defendant, this establishes that the door locks were in good working order on the accident date. Defendant also relies on the deposition testimony of Stephen Kutu-Jones, who performed maintenance at the building, and who stated that he used the door in question that morning at 9:00 a.m. without a problem. Defendant points out that Immacula Salvador, the evening nurse who cared for plaintiff's patient, testified at deposition that she entered the building to relieve plaintiff around twenty minutes before plaintiff exited and she had no problems with the door at that time.
In the future, defendant should include more legible copies of the documents upon which it relies.
This evidence, defendant argues, establishes its right to summary judgment. It states that its vigilant maintenance checks and the lack of prior similar incidents in the week prior to the accident proves that it had no notice of the defective condition. It points out that NYCHA's twice-daily inspections of the door had not revealed any problems. Defendant adds that it had never received a building maintenance complaint about the locking mechanism before the accident in question. Defendant argues plaintiff's and Ms. Salvador's testimony supports its position, as neither one had a prior accident at the main door entrance and neither one noticed the defective condition, and Ms. Salvador entered the door without incident twenty minutes earlier. Given the above, defendant states, there is no evidence of notice.
In addition, defendant asserts, plaintiff has not rebutted their arguments or set forth a prima facie case. She alleges actual and constructive notice, defendant states, but does not point to any evidence supporting this contention. Although plaintiff alleges there had been prior problems with the door, defendant claims, plaintiff has not identified these incidents. She also has not shown that the defect existed for a sufficient period to create a question of fact regarding defendant's constructive notice, defendant states. As defendant did not create the condition or have either actual or constructive notice, defendant argues, summary judgment is appropriate (citing, inter alia, Mitchell v. City of New York , 29 AD3d 372, 374 [1st Dept 2006] [involving slip and fall on dirt outside the building]; Soto v. New Frontiers 2 Hope Hous. Devel. Fund Co. , 118 AD3d 471, 471 [1st Dept 2014] [in which mail receptacle unit fell, resulting in injuries to postal worker; defendants established their initial burden and plaintiff failed to show a prima facie case] ).
Defendant further argues that plaintiff fails to rebut its evidence that it lacked even a general awareness that the subject door was in any way defective. Even if it had general awareness of the alleged defect, defendant states, this is not enough to constitute constructive notice (citing Gordon v. American Museum of Natural History , 67 NY2d 836, 838 [1986] [involving slip and fall on waxy paper on the floor] ). Dismissal is appropriate, defendant contends, because an alternate ruling would essentially require it to patrol the building twenty-four hours a day (citing Pfeuffer v. New York City Hous. Auth. , 93 AD3d 470, 472 [1st Dept 2012] ).
Plaintiff opposes the motion and cross-moves for summary judgment. Plaintiff argues that defendant's motion for summary judgment ought to be denied because (1) she should be granted summary judgment on liability based on the theory of res ipsa loquitur; or, alternatively, res ipsa loquitur raises a factual question which should be considered by a jury; (2) defendant has not affirmatively established that (a) it did not cause or create the alleged defect that caused plaintiff's accident, (b) it did not have actual notice of the alleged defect, (4) it did not have constructive notice of the alleged defect, and (5) there are no genuine issues of material fact regarding notice. Plaintiff also asks the court to strike defendant's affirmative defenses, which assert that there was contributory negligence, that plaintiff assumed the risk of injury, and that the negligent acts were committed by another person. Plaintiff points to the deposition testimony of Mr. Kutu-Jones, the maintenance worker. He stated that the armature would not come off the door unless someone had unscrewed it. He also testified he was unaware of any complaints about the armature before the date of the accident. In addition, he stated that a special screwdriver, like an allen wrench, had to be used to screw and unscrew the armature.
Plaintiff argues that the case should be submitted to a jury on the theory of res ipsa loquitur. Plaintiff cites Dermatossian v. New York City Transit Auth. (67 NY2d 219, 226 [1986] [involving post-trial challenges] [citation and internal quotation marks omitted] ), which held "certain occurrences contain within themselves a sufficient basis for an inference of negligence." To raise a triable issue regarding res ipsa loquitur, a plaintiff must show that the event ordinarily does not occur in the absence of negligence, that the defendant had exclusive control of the instrumentality in question, and that no voluntary action by plaintiff contributed to the accident ( id. at 226-27 ). Plaintiff states that all three elements have been satisfied in the case at hand. First, a metal armature does not normally fall absent negligence. Second, the armature was in defendant's exclusive control. Third, the incident was not due to any voluntary action by plaintiff. Thus, plaintiff claims, she has set forth a prima facie claim on this issue. In addition, in her cross-motion, plaintiff seeks summary judgment on the issue of liability under this theory (citing, inter alia, Morejon v. Rais Constr. Co. , 7 NY3d 203 [2006] [finding, however, that material issues of fact precluded summary judgment]; Dillenberger v. 74 Fifth Ave. Owners Corp. , 155 AD2d 327, 327 [1st Dept 1989] [granting summary judgment] ). She states that res ipsa loquitur is especially appropriate in falling object cases (citing, e.g. , Mejia v. New York City Transit Auth. , 291 AD2d 225 [1st Dept 2002] ), and that the fact that defendant did not have "sole physical access" to the door does not defeat their argument ( Hutchings v. Yuter , 108 AD3d 416, 417 [1st Dept 2013] [res ipsa loquitur applied though other individuals had access to garage door that struck him on the head, "since this is the type of event that does not normally occur in the absence of negligence"] ).
In addition, plaintiff argues that defendant did not establish that it lacked constructive notice. Plaintiff stresses that defendant, as the moving party, has the burden of proof. Therefore, it must show how long before plaintiff's accident it last inspected the door (citing Oliveri v. Vassar Brothers Hospital , 95 AD3d 973 [2d Dept] [involving watery condition on the floor], lv dismissed , 20 NY3d 965 [2012] ). Plaintiff argues that the inspections Mr. Brown described were insufficient. Plaintiff points out that, according to Mr. Brown, the maintenance worker simply determined, by means of a visual inspection, whether the door was locked or damaged, but did not check to see whether there was a problem with the screws holding the door's armature in place.
Next, plaintiff argues defendant did not satisfy its burden of showing it did not cause or create the alleged defect which caused plaintiff's injuries and thus defendant's motion should be denied. Plaintiff notes that, as defendant points out, repairs were made to the subject door six days before plaintiff's accident. As defendant has not produced any corresponding work tickets for the repairs, plaintiff contends, it has not established beyond question that the repair was completed successfully and there were no further problems. Plaintiff argues that Mr. Brown's deposition testimony underscores the existence of factual questions. For example, when plaintiff's counsel asked whether the maintenance workers generally performed follow-up inspections after they completed repairs, he replied, "[n]ot necessarily" (Brown Dep, at p. 54 l 24; see id. , p. 57 ll 10-14).
Mr. Brown's deposition testimony indicates that at times repairs were performed without a work ticket.
Plaintiff's opposition papers also argue that defendant had actual notice of the defect. Again, she relies on Mr. Brown's deposition testimony. Mr. Brown indicated that there was an ongoing problem with vandalization, including breaking the glass and otherwise damaging the lobby door where the accident in question occurred. When plaintiff's counsel asked Mr. Brown to specify the type of damage to the door, he replied, "The door closure, magnet. That is the main thing" (id. , p. 143, ll 3-4). Importantly, Mr. Brown testified that there was damage to the door on a weekly basis. For the aforementioned reasons, plaintiff argues that defendant's request for summary judgment should be denied wholeheartedly. At the very least, plaintiff argues, there are issues of fact as to actual notice.
Plaintiff's cross-motion also asks for dismissal of defendant's first, second, and fifth affirmative defenses, but does not explain the basis of her application. As this Court cannot engage in conjecture as to plaintiff's request, it does not consider this prong of her cross-motion.
Defendant argues that the doctrine of res ipsa loquitur does not apply to this case. Defendant states that "only in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment or a directed verdict" ( Morejon , 7 NY3d at 209 ). Defendant states that plaintiff's counsel did not submit an expert affidavit which describes how the magnet is mounted and attached to the top of the doorway and how the magnet could have fallen due to third-party actions. In addition, defendant argues, the subject door was used by numerous individuals twenty-four hours a day, every day, and thus it was not in defendant's exclusive possession and control. Moreover, defendant states, it has established its right to summary judgment on this issue because it inspected the door twice daily, because the door was not under its exclusive control, and because plaintiff's colleague, Ms. Salvador, had used the door without incident twenty minutes before the accident. Furthermore, defendant reiterates, it was under no duty to inspect the door twenty-four hours a day, every day (citing Pfeuffer , 93 AD3d at 472 ).
Discussion
Initially, the Court rejects defendant's argument that plaintiff's cross-motion should not be considered because it is untimely. Under CPLR § 3212 (a), the Court has the discretion to consider plaintiff's motion "on good cause shown." Here, where plaintiff responded to the motion for summary judgment with her cross-motion, it is in the interest of justice and judicial economy to consider her application. Further, under CPLR § 3212 (b), the Court has the power to grant judgment to any party if it "appear[s] that any party other than the moving party is entitled to judgment." Thus, even in the absence of good cause, consideration of the cross-motion is appropriate.
Accordingly, the Court turns to the substance of the motions. To prevail on a motion for summary judgment, the moving party must establish its claim or defense and show, prima facie, that there is no issue of material fact (see Jones v. Underhill Realty, LLC , 160 AD3d 494, 494 [1st Dept 2018] [where door slammed on plaintiff's foot, defendant established its prima facie right to judgment through evidence including expert testimony] ). If the moving party makes this showing, the burden shifts to the non-movant to show that material issues of fact exist ( Jacobsen v. New York City Health & Hosp. Corp. , 22 NY3d 824, 833 [2014] ). The movant's "burden is a heavy one" (id. [quoting William J. Jenack Estate Appraisers and Auctioneers, Inc. v. Rabizadeh , 22 NY3d 470, 475 (2013) ] ).
Based on the above guidelines, the Court denies defendant's motion for summary judgment. For a defendant to prevail in a premises liability case, it must not only set forth a prima facie case but must establish, conclusively, "that it neither created the alleged defective condition nor had actual or constructive notice of its existence" ( Kyte v. Mid-Hudson Wendico , 131 AD3d 452, 453 [2nd Dept], lv denied , 26 NY3d 915 [2015] ). In the case at hand, defendant has pointed to unrefuted evidence that it inspected the premises regularly and that it had recently performed repairs to the door. In addition, it points to deposition testimony suggesting that the door was in good repair on the date of the incident, both when plaintiff initially entered the building and when Ms. Salvador used it. It also adequately alleges that it lacked actual or constructive notice. Thus, it made the requisite prima facie showing of its entitlement to judgment.
Plaintiff's opposition and her cross-motion, however, raise issues of fact precluding summary judgment. She notes that door armatures generally do not fall off a door unless there is a problem with the door. She stresses that, according to Mr. Brown, on whose testimony defendant in part relied, the twice-daily inspections were visual only, and might not have discovered a loose armature. Moreover, she correctly notes that defendant's evidence showed there had been a problem with the door a week earlier and that, according to Mr. Brown, there may not have been a follow-up inspection to make sure that the repair was successful. Significantly, too, plaintiff raises an issue as to constructive notice based on Mr. Brown's statement that the door was broken on a regular — even a weekly — basis (see Cullen v. PWV Acquisition, LLC , 2018 NY Misc LEXIS 3487, *9, 2018 NY Slip Op. 31972, **8-9 [U], 2018 WL 3859696 [Sup Ct NY County 2018] ). Though defendant is correct that it need not patrol the doorway every minute, it is not clear whether the door itself was fully inspected on a regular basis given the ongoing problems with the door. Thus, triable issues of fact remain.
The Court also denies plaintiff's motion for summary judgment on the issue of liability on a res ipsa loquitur theory. As the parties have stated, res ipsa loquitur permits an inference of negligence where the event does not normally occur absent negligence, the instrumentality that caused the injury was within the defendant's exclusive control, and plaintiff's actions did not cause or contribute to the injury ( Barkley v. Plaza Realty Investors, Inc. , 149 AD3d 74, 77 [1st Dept 2017] ). "[A] plaintiff need not conclusively eliminate the possibility of all other causes of the injury" (id. ). For a triable issue of fact to exist, it is sufficient "that the evidence supporting the three conditions afford a rational basis for concluding that it is more likely than not that the injury was caused by defendant's negligence" (id. [citation and internal quotation marks omitted] ).
Contrary to defendant's arguments, plaintiff has raised triable issues of fact on all three of the above points, sufficient to withstand dismissal of this claim. The armature of a door "[does] not generally fall in the absence of negligence" ( Pavon v. Rudin , 254 AD2d 143, 145 [1st Dept 1998] ) ). Moreover, the fact that other people used the door does not mean that defendant lacked exclusive control of the door or that plaintiff — or any other individuals — caused the armature to fall (id. ["the mere act of opening (a) door does not make the accident plaintiff's fault or put the door under plaintiff's control"]; accord Lukasinski v. First New Amsterdam Realty , 3 AD3d 302, 303 [1st Dept 2004] ). At the summary judgment phase, "a plaintiff need not conclusively eliminate the possibility of all other causes of the injury, so long as the evidence affords a rational basis for concluding that it is more likely than not that the injury was caused by defendant's negligence" ( Bonura v. KWK Assoc. , 2 AD3d 207, 208 [1st Dept 2003] [citations and internal quotation marks omitted] ). Defendant's reliance on Kyte and other cases are misplaced, as they deny the various plaintiffs' motions for summary judgment but do not dismiss the res ipsa loquitur claims altogether. Therefore, the matter should be resolved by the trier of fact.
As such, the Court denies plaintiff's cross-motion for summary judgment under this theory of liability. The standard for granting summary judgment based on res ipsa loquitur is very high, and only rarely does a court grant judgment as a matter of law on this basis ( Morejon , 7 NY3d at 209 ; Bunting v. Hayes , 104 AD3d 715, 716 [2nd Dept 2013] ) In the context of a res ipsa loquitur argument regarding the malfunction of a door or other equipment, the party seeking judgment often relies on expert testimony to establish that the accident would not have occurred absent negligence (see, e.g. , Burgess v. Otis Elevator Co. , 69 NY2d 623, 623 [1986] ; Pavon , 254 AD2d at 144 ). Here, plaintiff has not submitted expert evidence. Thus, plaintiff has not demonstrated conclusively that only negligence can cause the incident at issue. Indeed, Mr. Brown's statement that the door was broken regularly by vandals, raises issues of fact concerning the res ipsa loquitur argument and concerning notice. The Court notes that defendant also has not submitted expert evidence to refute plaintiff's claim, and this militates against judgment on defendant's behalf.
Conclusion.
The Court has considered all the parties' arguments, even if not directly mentioned in this order. In support of their arguments relating to notice, both parties relied on numerous cases involving slips and falls on ice, rainwater, banana peels, debris, and the like. The Court has not relied on these cases, as the malfunction of a door raises issues which are distinguishable from those relating to whether a store or building owner has notice of a transient condition and what its duties are with respect to such conditions. Accordingly, it is
ORDERED that the motion and the cross-motion are denied.