Opinion
12458/08.
Decided February 7, 2011.
Richard A. DeBrosse, Esq., DeBrosse Studley, LLP, Jamaica Estates, New York, Attorneys for Plaintiff.
Merle Schrager, Esq., Hammill, O'Brien, Croutier, Dempsey Pender Koehler, P.C., Syosset, New York, Attorneys for Defendant.
By notice of motion filed on September 21, 2010, under motion sequence number three, defendant Key Food Supermarket, Inc., (hereinafter referred to as "the movant" or "Key Food"), seeks an order granting summary judgment in its favor on the issue of liability and dismissing plaintiff's complaint pursuant to CPLR § 3212. Plaintiff, Ester Kokin, opposes the motion.
BACKGROUND
On April 22, 2008, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. Issue was joined by Key Food's verified answer, signed on September 9, 2008. On March 16, 2010, a note of issue was filed. Plaintiff's complaint, bill of particulars and deposition testimony allege that on May 28, 2007, at 10:30 a.m., she slipped and fell at the defendant's supermarket located at 505 Neptune Avenue, Brooklyn, New York due to the presence of a wet and dangerous condition caused by the defendant's negligence. She further alleged that she sustained physical injuries from the fall and that the defendant either caused or had actual and constructive notice of the dangerous condition.
MOTION PAPERS
The movant's motion papers consist of an affirmation of its counsel, a memorandum of law, an affidavit of service and ten exhibits labeled A-J. It is noted that the affirmation of Key Food's counsel states Neptune Food Corporation is the actual name of the defendant and that it recognizes that the plaintiff is suing it as Key Food Supermarket, Inc. Exhibit A is an order dated September 10, 2010 extending the movant's time to file a summary judgment motion to October 11, 2010. Exhibit B is plaintiff's summons and verified complaint. Exhibit C contains Key Food's verified answer and various discovery demands. Exhibit D is plaintiff's verified bill of particulars, dated April 23, 2009. Exhibit E is the transcript of the deposition of the plaintiff conducted on June 19, 2009. Exhibit F is a transcript of the deposition of Gary Dohn, defendant's store manager, conducted on December 17, 2009. Exhibit G is a the photograph which the plaintiff identified at her deposition as depicting the aisle in which she slipped and fell. Exhibit H is identified in the affirmation of defendant's counsel as a Gleason Report of May 28, 2008. Exhibit I is Gary Dohn's affidavit, dated May 13, 2010. Exhibit J is Jeffrey Linsenbaum's affidavit, another store manager of the defendant, dated May 13, 2010.
Plaintiff opposes the motion with an affirmation of counsel and three annexed exhibits labeled "D," "E," and "1." They include plaintiff's verified bill of particulars, a transcript of plaintiff's deposition conducted on June 19, 2009, and plaintiff's affidavit. Key Food has replied to plaintiff's opposition with an affirmation of its counsel.
LAW APPLICATION
A motion for summary judgment may be granted only when the moving party makes a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact ( Alvarez v. Prospect Hosp., 68 NY2d 320; see also, Napolitano v. Suffolk County Dept. of Public Works , 65 AD3d 676 [2nd Dept., 2009]; and Kolivas v. Kirchoff , 14 AD3d 493 [2nd Dept., 2005]). "Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" ( Celardo v. Bell, 222 AD2d 547 [2nd Dept., 1995]). Once the movant has met this burden, the burden then shifts to the party opposing the motion to demonstrate via admissible evidence the existence of a factual issue requiring a trial of the action ( Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, 49 NY2d 557, 560).
The elements of a negligence claim are the existence of a duty, a breach of that duty, and damages proximately caused by that breach of duty ( Lapides v. State, 57 AD3d 83 [2nd Dept., 2008]). "To prove a prima facie case of negligence in a slip and fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition" ( Scott v. Beverly Hills Furniture , 30 AD3d 577 , 578 [2nd Dept., 2006], citing Goldman v. Walbaum, 248 AD2d 436 [2nd Dept., 1999]). A defendant has constructive notice of a defect when the defect is visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected ( Larsen v. Congregation B'Nai Jeshurum of Staten Island , 29 AD3d 643 [2nd Dept., 2006]).
On the defendant's motion for summary judgment to dismiss the complaint, the defendant is required to make a prima facie showing affirmatively establishing that he neither created nor had actual or constructive notice of the dangerous condition that caused plaintiff's accident ( Mitchell v. Consolidated Edison , 27 AD3d 430 [2nd Dept., 2006], citing Curzio v. Tancredi , 8 AD3d 608 [2nd Dept., 2004]; see also, Baines v. G D Ventures, Inc., 64 AD3d 528 [2nd Dept., 2009]).
Defendant has mets its burden of showing that it did not cause and create, nor had actual or constructive notice of a dangerous and defective condition for a length of time sufficient to remedy it through the sworn statements of Gary Dohn and Jeffrey Linsenbaum, its supermarket managers. The affidavit of Jeffrey Linsenbaum, dated May 13, 2010, states that he walked down the produce aisle twenty minutes before the alleged accident and that he did not notice anything on the floor. (Linsenbaum Aff. ¶ 5, May 13, 2010.) Similarly, the Affidavit of Gary Dohn, dated May 13, 2010, also states that he walked down the produce aisle within an hour of the alleged accident and did not see anything on the floor at the time. (Dohn Aff. ¶ 5, May 13, 2010.) At no time throughout the day did Gary Dohn notice parsley or water on the floor of the produce aisle, nor did anyone make any complaints to him or another store manager about parsley or water on the floor. (Dohn Aff. ¶ 6.) Furthermore, Gary Dohn stated that on the day of the alleged accident, the vegetables did not receive any type of spray, and the floors had not been mopped. (Dohn Dep. pp. 26; 28.)
Having met its burden, the burden now shifts to plaintiff to demonstrate whether there are any issues of fact that require a trial to be resolved. Plaintiff opposes Key Food's contention that it did not create or cause a defective or dangerous condition, and that it did not have actual and constructive knowledge of the condition through the sworn allegations of fact contained in her affidavit and in her deposition testimony. Plaintiff states that she has been shopping at that Key Food Supermarket since she arrived in this country in 1977. (Kokin Dep. p. 23.) Since moving to this country, she frequented the supermarket at least twice a week. (Kokin Aff. ¶ 5.) This allowed her to become familiar with the employees and their routines and duties. (Kokin Aff. ¶ 6.) One such routine involves the defendant's employees transporting saturated vegetables from the back room to the produce counter, producing wetness. (Kokin Dep. p. 40.) Plaintiff's affidavit also states that on the day of the accident, she saw employees returning wet vegetables onto the shelves without placing a wet floor sign in the aisle. (Kokin Aff. ¶ 11).
In negligence actions, where the issue involves proof of a deliberate and repetitive practice, a party should be able, by introducing evidence of such habit or regular usage, to allow the inference of its persistence, and hence negligence on a particular occasion ( Halloran v. Virginia Chemicals Inc., 41 NY2d 386, at 392 (1997). The Appellate Division Second Department in Rigie v. Goldman, 148 AD2d 23 (2nd Dept., 1989) also followed the Court of Appeal's reasoning set forth in Halloran in its analysis of evidence of habit. In Rigie, the Second Department held that "while we should exercise caution in permitting the admission of habit evidence to prevent such evidence from being used to establish a party's propensity to act in conformity with his general character, where the evidence of habit exhibits a uniformity of response and a sufficient number of instances of the repetitive conduct, it is admissible." Id. at 29. Applying that rule to the instant case, Key Food's routine and deliberate procedure that plaintiff introduces in her affidavit, draws the supporting inference that the defendant's employees did indeed transport saturated vegetables to the produce counters on the day of the alleged accident, causing and creating the dangerous and defective condition. Recurring conditions can be introduced to show that a party had constructive notice of a defective or dangerous condition. In order to show constructive notice, plaintiff must show that the defendant had actual knowledge of a recurrent dangerous condition ( Mauge v. Barrow Street Ale House , 70 AD3d 1016 , 1017 [2nd Dept., 2010]). A question of fact regarding a dangerous condition can be established by offering evidence that an ongoing and recurring dangerous condition existed in the area of the accident which was routinely left unaddressed ( see, Pinto v. Metropolitan Opera , 61 AD3d 949 , 950,[2nd Dept., 2009]).
Although, the movant refutes plaintiff's claim through the deposition transcript of Gary Dohn (Dohn Dep. p. 26) the court function is not to resolve issues of credibility in the context of a summary judgment motion. Summary judgment is issue-finding rather than issue determination ( Brunetti v. Musallam , 11 AD3d 280 , 281 [2nd Dept., 2004]). "Furthermore, a court may not weigh the credibility of witnesses on a motion for summary judgment, unless it clearly appears that the issues are not genuine, but feigned'" ( Lipschutz v. Kiderman , 76 AD3d 178 , 186 [2 Dept., 2010]). The court cannot and does not find that the credibility issue raised by the plaintiff is feigned.
Furthermore, it is axiomatic that summary judgment is a drastic remedy which should not be granted where triable issues of fact are raised and cannot be resolved on conflicting affidavits ( Brunetti v. Musallam , 11 AD3d 280 , 281 [2nd Dept., 2004]). Here the conflicting sworn statements creates a triable issue of fact on whether the defendant may have caused and created the dangerous and defective condition which caused plaintiff's injury. In light of the foregoing it is unnecessary to address the issues raised in defendant's reply papers pertaining to its claim that Key Food lacked notice of the dangerous condition.
The motion for summary judgment is denied.
The foregoing constitutes the decision and order of the court.