Opinion
Index No. 506893/2020 Motion Seq. 3
10-19-2022
FRANCINE KALEY, Plaintiff, v. TRUMP VILLAGE SECTION 4, INC. And MAJOR ELEVATOR CORP., Defendants.
Unpublished Opinion
PRESENT: HON. DEBRA SILBER, Justice.
DECISION/ORDER
Hon. Debra Silber, J.S.C.
The following e-filed papers read herein: NYSCEF Doc Nos.
Notice of Motion and Affidavits (Affirmations) Annexed 70-81
Opposing Affidavits (Affirmations) 82-83: 87-95
Reply Affidavits (Affirmations) 96_
Upon the foregoing papers, defendant Trump Village Section 4, Inc. (Trump Village) moves for summary judgment (in motion sequence [mot. seq.] three) dismissing the complaint on the issue of liability, in this action which arises from a slip/trip and fall accident, or, in the alternative, granting it summary judgment on its cross-claims against the co-defendant. For the reasons which follow, both branches of the motion are denied.
Background
On March 19,2020, plaintiff Francine Kaley (Kaley) commenced this action against defendants Trump Village and Major Elevator Corp. (Major) by filing a summons and a complaint. The complaint alleges that on August 24, 2019, Kaley sustained personal injuries due to an unsafe condition in the 23rd floor hallway at the premises, located at 2944 West 5th Street, Brooklyn, NY. She alleges that she slipped or tripped on a piece of Masonite which had been placed on the floor to protect the flooring while elevator repair/replacement work was performed by defendant Major. The elevator modernization work had started in November, 2018, almost a year before plaintiffs accident. At the time of the accident, Kaley was a residential tenant at the premises. Both defendants answered the complaint, and this action is now on the trial calendar.
The motion for summary judgment on liability
Movant Trump Village moves to dismiss the complaint on the grounds that "Plaintiff has clearly failed to establish or provide any evidence that Trump Village either created the allegedly defective condition or had actual or constructive notice of the allegedly defective condition" [Aff ¶22]. This seems to be addressed to the part of plaintiffs claim that either the Masonite boards had curled up, or the tape holding the Masonite boards together had curled up, which caused her to trip. Counsel then [¶23] turns to her claim that there was a greasy substance on the floor, and continues "plaintiff repeatedly testified and admitted that the grease that caused her to fall was created by the employees of Major Elevator who were doing repair and installation work at the Premises, and not by any associated with Trump Village."
Movant supports the motion with the pleadings, Trump Village's contracts with Major, and the EBT transcript for plaintiffs deposition. Movant Trump Village did not include either of defendants' EBT transcripts in the motion papers.
At her deposition, plaintiff testified that a few days before her accident, there was a big "blotch" of grease on the Masonite on her floor, and she reported it to a porter. When she came home that day, it had been cleaned up. But [Doc 80 Page 58] "it's not like they changed the Masonite, they just wiped it up so it just smeared more." At the time of her accident, she left her apartment and "I slipped on the old grease, and as I was slipping my (left) foot got caught (stuck) on that old tape that was there, that tape that was like curling" and she fell to the floor [Page 63].
In opposition to the motion, co-defendant Major provides solely an attorney's affirmation. Counsel avers that Trump Village fails to make a prima facie case for summary judgment. He quotes plaintiffs testimony and Trump Village's EBT, which was only subsequently e-filed by plaintiff. Plaintiff also opposes, and provides an attorneys' affirmation, the EBT transcript of Joseph Gaba, a senior assistant manager for Trump Village, and an affidavit from another tenant at the premises. Counsel for plaintiff also avers that the court should find that Trump Village has failed to make a prima facie case for summary judgment.
Standards for Summary Judgment
Summary judgment is a drastic remedy that deprives a litigant of his or her day in court and should thus only be employed when there is no doubt as to the absence of triable issues of material fact (Kolivas v Kirchoff, 14 A.D.3d 493 [2d Dept 2005]; see also Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]). However, a motion for summary judgment will be granted if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law (CPLR 3212 [b]; Gilbert Frank Corp. v Federal Ins. Co., 70 N.Y.2d 966, 967 [1988]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]) and the party opposing the motion for summary judgment fails to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986], citing Zuckerman, 49 N.Y.2d at 562).
"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Manicone v City of New York, 75 A.D.3d 535, 537 [2d Dept 2010], quoting Alvarez, 68 N.Y.2d at 324; see also Zuckerman, 49 N.Y.2d at 562; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]). The motion should be granted only when it is clear that no material and triable issue of fact is presented (Di Menna & Sons v City of New York, 301 NY 118 [1950]). If the existence of an issue of fact is even arguable, summary judgment must be denied (Phillips v Kantor & Co., 31 N.Y.2d 307 [1972]; Museums at Stony Brook v Vil. of Patchogue Fire Dept, 146 A.D.2d 572 [2d Dept 1989]). Also, parties opposing a motion for summary judgment are entitled to every favorable inference that may be drawn from the pleadings, affidavits and competing contentions (Nicklas v Tedlen Realty Corp., 305 A.D.2d 385 [2d Dept 2003]; see also Akseizer v Kramer, 265 A.D.2d 356 [2d Dept 1999]; McLaughlin v Thaima Realty Corp., 161 A.D.2d 383, 384 [1st Dept 1990]; Gibson v American Export Isbrandtsen Lines, 125 A.D.2d 65, 74 [1st Dept 1987]; Strychalski v Mekus, 54 A.D.2d 1068, 1069 [4th Dept 1976]). Furthermore, in determining the outcome of the motion, the court is required to accept the opponents' contentions as true and resolve all inferences in the manner most favorable to opponents (Pierre-Louis v DeLonghi America, Inc., 66 A.D.3d 859, 862 [2d Dept 2009], citing Nicklas v Tedlen Realty Corp., 305 A.D.2d 385 [2d Dept 2003]; Henderson v City of New York, 178 A.D.2d 129, 130 [1st Dept 1991]; see also Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt, P.P., 7 N.Y.3d 96, 105-106 [2006]). Moreover, a party seeking summary judgment has the burden of establishing prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of a claim or defense and not by simply pointing to gaps in the proof of an opponent (Nationwide Prop. Cas. v Nestor, 6 A.D.3d 409, 410 [2d Dept 2004]; Katz v PRO Form Fitness, 3 A.D.3d 474, 475 [2d Dept 2004]; Kucera v Waldbaums Supermarkets, 304 A.D.2d 531, 532 [2d Dept 2003]). Lastly, "[a] motion for summary judgment 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility'" (Ruiz v Griffin, 71 A.D.3d 1112, 1115 [2010], quoting Scott v Long Is. Power Auth, 294 A.D.2d 348 [2d Dept 2002]; see also Benetatos v Comerford, 78 A.D.3d 750, 751-752 [2d Dept 2010]; Lopez v Beltre, 59 A.D.3d 683, 685 [2009]; Baker v D.J. Stapleton, Inc., 43 A.D.3d 839 [2d Dept 2007]).
Discussion
Because the plaintiff seems to be asserting claims of both a transient greasy condition and of a hazardous premises condition with regard to the "curling" of the Masonite boards/tape, the court will address each separately.
In order to establish freedom from liability in a slip and fall case, that is, where the allegation is of a transient condition, the defendant, "To meet its initial burden on the issue of lack of constructive notice, the defendant must offer evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Skerrett v LIC Site B2 Owner, LLC, 199 A.D.3d 956, 2021 NY Slip Op 06386 [2d Dept 2021]; Jeremias v Lake Forest Estates, 147 A.D.3d 742 [2d Dept 2017]; Ellis v Sirico's Catering, 194 A.D.3d 692, 693 [2d Dept 2021]). Counsel for defendant Trump Village in this motion makes no mention whatsoever of this burden of proof in his affirmation in support, nor does movant provide any evidence of when the area was last cleaned or inspected before plaintiffs accident. Thus, movant fails to make a prima facie case for dismissal.
A property owner may be liable for a trip and fall on its property if it '"either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition'" (Rojas v Schwartz, 74 A.D.3d 1046, 1047 [2010], quoting Ortega v Puccia, 57 A.D.3d 54, 61 [2008]; see Banscher v Actus Lend Lease, LLC, 132 A.D.3d 707, 709 [2015]). In order to establish freedom from liability in a trip and fall case, that is, where the allegation is of a hazardous condition, the defendant "has the initial burden of making a prima facie showing that it neither created the alleged hazardous condition nor had actual or constructive notice of its existence" (see Guzman v Jewish Bd. of Family & Children's Servs., Inc., 103 A.D.3d 776, 777, 960 N.Y.S.2d 151 [2013]; Kruger v Donzelli Realty Corp., 111 A.D.3d 897, 975 N.Y.S.2d 689 [2013], Iv denied22 N.Y.3d 864, 9 NE3d 368, 986 N.Y.S.2d 18, 2014 NY Slip Op 68066 [2014]). "To constitute constructive notice, a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit [the defendant] to discover and remedy it" (Garris v Lindemann, 117 A.D.3d 785, 786 [2d Dept 2014]). Here, with only the plaintiff s EBT transcript and no other evidence, defendant Trump Village fails to make a prima facie case for summary judgment. It must be noted that in opposition, plaintiff provides the EBT transcript of Trump Village's witness, and he testified that it was Trump Village's employees who had installed the Masonite [Doc 90 Page 49 Lines 19-20]. And that their employees regularly clean and mop the hallway floors. Whether the Masonite had curled, or the tape holding the Masonite together had curled, and if either of these situations created an inherently dangerous condition, is a question of fact for the jury (see Carpenter v 130 W. Merrick, Inc., 71 A.D.3d 715 [2d Dept 2010]; Naletilic v Dan's Key Food, 47 A.D.3d 903 [2d Dept 2008]; Rivera v YMCA of Greater N.Y., 37 A.D.3d 579, 580 [2d Dept 2007]; Westbrook v WR Activities-Cabrera Mkts., 5 A.D.3d 69 [2d Dept 2004]; Greenstein v R& R of G.C, Inc., 50 A.D.3d 637 [2d Dept 2008]). But there is no dispute that if the condition was hazardous, it was a condition created by Trump Village, not major. This would be so whether the negligence was with regard to the installation of the Masonite, or with regard to the cleaning/mopping of it, if doing so with liquids caused the "curling."
In considering a summary judgment motion, the court is required to view the evidence in the light most favorable to the nonmoving party, and afford her/him/it the benefit of every favorable inference (see Ruiz v Griffin, 71 A.D.3d 1112, 1115, 898 N.Y.S.2d 590 [2010]) As the Second Department explains in LeBlanc v Skinner, 103 A.D.3d 202, 211-212 [2d Dept 2012], "a motion for summary judgment 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility' (Ruiz v Griffin, 71 A.D.3d at 1115, quoting Scott v Long Is. Power Auth., 294 A.D.2d 348, 348, 741 N.Y.S.2d 708 [2002]). Resolving questions of credibility, determining the accuracy of witnesses' testimony, and reconciling the testimony of the witnesses are for the trier of fact (Gille v Long Beach City School Dist., 84 A.D.3d 1022, 1023, 923 N.Y.S.2d 649 [2011]; see Republic Long Is., Inc. v Andrew J. Vanacore, Inc., 29 A.D.3d 665, 815 N.Y.S.2d 163 [2006]; Harty v Kornish Distribs., 119 A.D.2d 729, 501 N.Y.S.2d 142 [1986])."
The Motion for Summary Judgment on Trump Village's Cross-Claims
In its answer, filed June 18, 2020, Trump Village asserts three cross claims against co-defendant Major for contribution (first), common law indemnification (second) and contractual indemnification (third). In the motion, counsel seeks summary judgment on its claims for common law and contractual indemnification as against Major.
Whether seeking full or conditional indemnification, on a claim for contractual indemnification, "the one seeking indemnity need only establish that it was free from any negligence and [may be] held liable solely by virtue of... statutory [or vicarious] liability" (see Winter v ESRT Empire State Bldg, LLC, 201 A.D.3d 844, 845 [2d Dept 2022]).
The indemnification clauses in the contracts, one for elevator maintenance and one for the modernization work, are broad, but of course Major cannot be required to indemnify Trump Village for its own negligence. With the facts as described above, the court cannot conclude that Trump Village was free of negligence and that its liability is solely vicarious. Until the fact finder determines whether Major was negligent, and if so, what percentage of the overall negligence is attributable to Major, to Trump Village, and to plaintiff, the contractual provisions for contribution and "partial indemnity" cannot be applied or enforced. Thus, this application will have to wait until liability for the accident is determined.
Accordingly, it is hereby
ORDERED that the branch of defendant Trump Village's motion for summary judgment dismissing the complaint is denied; and it is further
ORDERED that the branch of defendant Trump Village's motion for summary judgment on its cross-claims against Major is also denied.
This constitutes the decision and order of the court.