Opinion
Index 151557/2018
04-05-2021
DOMINICK MANCINO, Plaintiff, v. SHOPRITE OF HYLAN BOULEVARD and WAKEFERN FOOD CORP., Defendants.
Unpublished Opinion
DECISION AND ORDER
HON. WAYNE M. OZZI, J.S.C.
The following papers numbered 1 to 3 were read on this motion by Defendants for an Order granting summary judgment dismissing Plaintiffs compliant pursuant to CPLR 3212.
Pages Numbered
Notice of Motion, Affirmation, Affidavit, Memorandum of Law and Attached Exhibits.....................................................................1
Affirmation in Opposition and Attached
Exhibit.................................................................................................2
Reply Affirmation...................................................................................3
By motion dated December 14, 2020 Defendants Shop Rite of Hylan Boulevard and Wakefern Food Corp. (collectively, "Defendants" or "ShopRite"), move this Court for an Order granting summary judgment in their favor. Plaintiff opposes the motion.
In this action, Plaintiff alleges that he sustained personal injuries as a result of a slip and fall incident that occurred on February 11, 2018 while walking towards the produce section near the entrance of ShopRite, located at 2424 Hylan Boulevard, Staten Island, New York. Defendants move for summary judgment on the grounds that the record is devoid of evidence indicating that Defendants created the alleged condition which caused the Plaintiff to fall and that there is no evidence to indicate that Defendants had actual or constructive notice of the alleged condition on which Plaintiff fell. Defendants further argue that the "sole proximate cause" of Plaintiff s injuries was his own inattention and carelessness," not any negligence on the part of Defendants. See Affirmation in Support p. 1.
On a motion for summary judgment, the movant has the initial burden of coming forward with evidence demonstrating entitlement to judgment as a matter of law, eliminating all material issues of fact. Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1985). In a slip and fall case such as this, the proponent of a summary judgment motion must make the initial prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. Fernandez v. Buckness Realty Ltd. Partnership. 123 A.D.3d 972 (2d Dep't 2014); Aguirre v. Paul 54 A.D.3d 302, 303 (2d Dep't 2008); Daniely v. County of Westchester. 297 A.D.2d 654 (2d Dep't 2003).
At the outset, the Court has reviewed the surveillance video and concurs with Plaintiff that the video does not unequivocally show that there was no water or other hazard in the area where the Plaintiff fell. The video depicts the Plaintiff falling. Although Defendants contend that Plaintiff admitted during his deposition that he did not see any water on the ground prior to his fall, his testimony indicates that he fell when he stepped off a mat with his left foot onto the tile floor in the produce section and that when he got up his pants and his jacket were wet. He further testified that he "looked down and there was water on the ground." Deposition of Dominick Mancino, pp. 66-70. Additionally, there was testimony from multiple witnesses that it had been raining on the date of the incident. Whether Plaintiff fell on water or tripped due to his own misstep, inattention, or carelessness, as Defendants allege, is an issue of fact that precludes summary judgment in this instance. The Court acknowledges that ShopRite employee Cheryl Manus gave a sworn statement that she did not see any condition on the floor prior to Plaintiffs fall and that many people walked through the produce department prior to Plaintiffs fall without issue. See Affidavit of Cheryl Manus. However, it is the existence of an issue, not the relative strength of same that is the critical and controlling consideration in determining a summary judgment motion. Barret v. Jacobs, 255 N.Y. 520 (1931). The evidence should be construed in a light most favorable to the party against whom summary judgment is moved. In doing so, in this instance, Defendants have failed to meet their initial burden in demonstrating that they did not create the condition which caused Plaintiff to slip and fall.
Defendants next contend that even if a wet condition on the floor caused Plaintiff to slip and fall, they did not have actual or constructive notice of same. On a motion for summary judgment, the initial burden is not on Plaintiff to show that Defendant had the required notice, but rather it is upon Defendant to show the absence thereof. See Colt v. Great Atlantic & Pacific Tea Co., Inc., 209 A.D.2d 294, 295 (1st Dep't 1994).
Generally, constructive notice is found when the alleged dangerous condition is visible, apparent, and exists on defendant's premises for a sufficient period to afford the defendant an opportunity to discovery and remedy it. Velocci v. Stop and Shop, 188 A.D.3d 436 (2d Dep't 2020), citing Ross v. Betty G. Reader Revocable Trust, 86 A.D.3d 419, 421 (1st Dep't 2011). A defendant can meet its burden of showing that it lacked constructive notice by producing evidence of its maintenance activities on the day of the accident and by specifically showing that the alleged condition did not exist when the area was last inspected or cleaned before the Plaintiff fell. See Gomez v. J.C. Penny Corp. Inc.. 113 A.D.3d 571, 571-572 (1st Dep't 2014). Thus, Defendants must come forward with some evidence indicating when the area was last cleaned or inspected prior to the incident. See Mehta v. Stop & Shop Supermarket Co., LLC, 129 A.D.3d 1037, 1038 (2d 2015). "Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice." Id., quoting Herman v. Lifeplex, LLC, 106 A.D.3d 1050, 1051 (2d Dep't 2013).
In Velocci v. Stop and Shop, supra, the defendant sustained its burden and was granted summary judgment dismissing the complaint. In support of its motion, the defendant offered its clean sweep log showing its cleaning and inspection procedures, as well as an affidavit by the store's employee who personally inspected the location in question, about an hour and a half before Plaintiffs fall. The employee said that she would have indicated "hazard" on the log had one been observed during her inspection.
In Metha v. Stop and Shop Supermarket Co., LLC, supra, the Appellate Division, Second Department, found that the defendant lacked actual or constructive notice where the defendant offered in support of its summary judgment motion an affidavit by a maintenance worker who personally inspected the area where the plaintiff fell ten to fifteen minutes prior to the accident and who observed no hazardous condition on the floor. He averred that he had no complaints of any kind about the area in question. The Second Department s concluded that this was sufficient to meet the defendant's burden.
In the matter presently before the Court, Defendants failed to eliminate all triable issues of fact as to whether there was a condition which caused Plaintiff to fall and, if so, whether they had constructive notice of same. See Rodriguez v. Shop Rite Supermarkets, Inc., 119 A.D.3d 923 (2014). Justin Lally, the assistant manager of the store, testified at a deposition that it was raining on the date of the incident. He further testified that when it rained, in an effort to prevent rain water from getting onto the floor of the store by the entrance, the maintenance department would put down extra mats and there would be a "heavy rotation... of our maintenance department going into our entrance way to make sure we have a dry area." Deposition of Justin Lally p. 31. The store would also put up "Caution, Wet Floor" signs to alert people, although he did not recall if such signs were up on the date of the incident. During periods of rain, the maintenance staff is supposed to walk the floors of Shop Rite in order to determine if any water was on the floors. Id. at 43. However, Mr. Lally was not aware of any type of records kept regarding the maintenance department's inspection of the floors, or the time intervals in which such inspections should be completed. Id. pp. 43-44. Furthermore, to his knowledge, there were no logs or any types of records kept by the maintenance department that indicates when the maintenance department workers walked around the store or any types of corrective measures they may have taken for wet conditions. Id., at 50-51. Thus, although Defendants, through the testimony of Mr. Lally, offered evidence as to the general practices and procedures of the maintenance department during periods of precipitation, Defendants have failed to offer any specific evidence of when the area was last inspected prior to the incident and have consequently failed to meet their initial burden.
Similarly, Defendant cannot point to Ms. Manus's presence in the area at the time of the incident and lack of observation of water on the floor as having inspected the area as sufficient evidence of lack of constructive notice. By her own testimony, she was "packing produce in the produce department for approximately thirty minutes before plaintiff fell" and that she had walked through the area in the period prior to Plaintiffs fall but did not observe any hazardous conditions. See Affidavit of Cheryl Manus; see also Deposition of Cheryl Manus p. 10. However, Ms. Manus was not working in the area in a maintenance capacity. In fact, Ms. Manus testified at her deposition that she was "not sure" when the area was last inspected by a ShopRite employee prior to Plaintiffs fall. Deposition of Cheryl Manus . 34. She also testified that she did not know whether the store had any specific safety or cleaning procedures in place during periods of precipitation at the time of the incident. Deposition of Cheryl Manus, pp. 18-19. Consequently, the testimony of Ms. Manus fails to eliminate any triable issues of fact as to whether Defendant had constructive notice of any hazardous condition.
Therefore, for the foregoing reasons, Defendant's motion for summary judgment is denied.