Opinion
No. 14–1014.
05-02-2017
Nicole MARINO, Plaintiff, v. GJERGJI ENTERPRISES, LLC, Gjergji Enterprises, LLC d/b/a Anthony's Banquet Hall and Anthony's Banquet Hall, Defendants.
John G. Rusk, Esq., Rusk, Wadlin, Heppner & Martuscello, LLP, Kingston, Counsel for Plaintiff. Sean A. Tomko, Esq., Santacrose & Frary, Albany, Counsel for Defendants, movant.
John G. Rusk, Esq., Rusk, Wadlin, Heppner & Martuscello, LLP, Kingston, Counsel for Plaintiff.
Sean A. Tomko, Esq., Santacrose & Frary, Albany, Counsel for Defendants, movant.
LISA M. FISHER, J.
This is a premises liability action wherein Plaintiff stepped on broken glass at Defendants' banquet hall and sustained personal injury. On May 19, 2012, Plaintiff was a high school student attending her school prom at the banquet hall owned and operated by Defendants. Approximately 140–160 people attended the prom. When she arrived at approximately 7:30–8 PM, the tables were already set up. There were both restaurant-supplied goblet water glasses and school-supplied commemorative glasses on the tables. There was a dark carpet around the tables. Dinner and dessert served buffet style, and then there was dancing with a DJ. There was no alcohol at this event. There were chaperones and a school resource officer present.
Defendants only had two individuals clearing tables, the owner Anthony B. Gjergji and Anna Distefano. Defendant Gjergji testified he vacuumed and cleaned the premises prior to the event starting. He claimed he would float between this event and another event, monitoring both and assisting as needed.
After eating dinner and dessert, Plaintiff took off her high heels and went dancing. Other female attendees had also taken off their shoes to go dancing. There was testimony from both sides that this was a common practice. According to Defendants, they began to clear the tables while the students were dancing. Defendant Gjergji used a silver, shelved cart to clear the tables.
Non-party witness Timothy Thompson was a student at the prom. While attendees were on the dance floor, he observed an individual "reaching over" tables in the area where the incident would occur and "knock it [a glass] over" and that "it was on the floor." He believed the individual was an employee cleaning the table, but also acknowledged it could have been a student, staff, or supervisor; he was not sure. He believed the glass broke, but admitted he only presumed that it broke, did not see it break, and did not know that it actually broke. This occurred approximately 15 minutes prior to the incident. He observed Defendants' staff using a shelved cart which he described as grey.
At approximately 11 PM, Plaintiff left the dance floor barefoot and followed her friend "Kim" back to the tables. She testified that there was a man cleaning up drinking glasses and a cart with drinking glasses on them. She testified they were walking by the man and the cart when she felt something in her foot. She felt pain and immediately grabbed at her foot. She brushed her hand over her heel and claimed there was blood everywhere. Plaintiff claimed that the man cleaning up the glasses turned around to check on her, then sat her down and pressed two napkins to the wound. Plaintiff testified she never saw the glass, but her friend Kim saw it and allegedly handed a bloody shard to the man who helped Plaintiff with the napkins.
Mr. Thompson testified that he came over when he saw Plaintiff fall and make an audible sound that drew people's attention in the banquet hall. When he went over, he observed a fractured water glass on the floor with a crack "almost like right down the middle on a curve." He observed "the little piece that separated from it was in more pieces on the ground." He testified the lighting was not adequate enough to see the shards on the dark carpet. He does not know what happened to the broken glass, as Defendants' servers were "already over there cleaning it up."
Defendant Gjergji was the man who helped Plaintiff with the napkins. He testified that he was monitoring the banquet hall when he saw Plaintiff stumble and go down to one knee. He testified that he immediate went over to assist her and observed blood from her foot. He sat her down and then held napkins to her foot and applied pressure. The school resource officer came over to assist him.
Defendant Gjergji testified he searched the area and did not find any broken glass. He recalls an individual approaching him approximately 20 minutes after the incident with a shard of glass. He inferred that the individual was implying the glass caused the injury. Neither Plaintiff, Mr. Thompson, nor Defendant Gjergji remember who that individual was with the shard or could provide a description. Defendant Gjergji did not observe any blood on the shard and did not believe it looked like glass from his glassware. He testified he did not break a glass the night of the incident, he did not observe anyone break a glass, and no one advised him that there was broken glass on the premises. His employee, Anna Distefano, also submitted an affidavit in support of this motion and similarly averred she did not break a glass, see anyone break a glass, or was told that someone broke a glass.
The Court notes that there was deposition testimony proving that Mr. Thompson sent Plaintiff an instant message through Facebook Messenger shortly after the incident. He claimed to have seen an employee knock over a glass before the incident. However, his deposition testimony differed somewhat from his alleged Facebook messages. Both Plaintiff and Mr. Thompson testified the instant messages were not deleted and still available, but none of these messages were annexed to the moving papers. Neither party appears to offer these messages. Since it has not been provided to the Court, the Court only relies on the sworn deposition testimony and not the differing, unsworn Facebook messages or testimony related to such messages which constitute hearsay.
Also lacking in this application is the testimony or affidavit of Kim, who allegedly was immediately present with Plaintiff when the incident occurred and allegedly found a bloody shard of glass. Similarly, there is no deposition testimony or sworn affidavit from the school resource officer who immediately responded after the incident.
Legal Analysis
Now, Defendants move for summary judgment contending that they did not create the dangerous condition or have notice of the dangerous condition. Plaintiff submits opposition and Defendants submit a reply.
"Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue" ( Sternbach v. Cornell University, 162 A.D.2d 922, 923 [3d Dept 1990] [internal quotations and citations omitted] ). "Negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination" ( Ugarriza v. Schmieder, 46 N.Y.2d 471, 474 [1979] ).
To establish a prima facie entitlement to judgment as a matter of law, a moving party must present proof in admissible form to demonstrate the absence of any triable issues of fact as to each and every allegation in the complaint and bill of particulars. (See Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985] ; Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ; accord Hollis v. Charlew Const. Co., Inc., 302 A.D.2d 700 [3d Dept 2003] ; Balnys v. Town of New Baltimore, 160 A.D.2d 1136, 1136 [3d Dept 1990] [noting the movant must come "forward with competent proof refusing the allegations of the complaint as amplified by the bill of particulars."].) Such "burden may not be met by pointing to gaps in plaintiff's proof" ( DiBartolomeo v. St. Peter's Hosp. of City of Albany, 73 AD3d 1326 [3d Dept 2010] ; accord Dow v. Schenectady County Dept. of Social Servs., 46 AD3d 1084, 1084 [3d Dept 2007] ).
In a premises liability matter, "[t]o establish a prima facie entitlement to summary judgment, defendant was required to show that it maintained its property ‘in a reasonably safe condition and that [it] neither created nor had actual or constructive notice of the allegedly dangerous condition’ " ( Lucatelli v. Crescent Assoc., 132 AD3d 1225, 1225 [3d Dept 2015], quoting Decker v. Schildt, 100 AD3d 1339, 1340 [3d Dept 2012] ; see also Basso v. Miller, 40 N.Y.2d 233 [1976] ). "[A] defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that [a] plaintiff cannot identify the cause of [his or her] fall without engaging in speculation" ( Pascucci v. MPM Real Estate, LLC, 128 AD3d 1206, 1206 [3d Dept 2015], quoting Ash v. City of New York, 109 AD3d 854, 855 [2d Dept 2013] ; accord Acton v.1906 Restaurant Corp., 147 AD3d 1277 [3d Dept 2017] ["defendants are not liable if the conclusion that defendants' negligence was the proximate cause of [plaintiff's injury] would be based on pure speculation."] ).
"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 defendant's employees to discovery and remedy it" ( Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837 [1986] ; see Rivera v. 2160 Realty Co., L.L.C., 4 NY3d 837 [2005] ; see also McMullin v. Martin's Food of S. Burlington, Inc., 122 AD3d 1103, 1104 [3d Dept 2014] ). "Constructive notice has been inferred where there is evidence that defendant's employees were in the immediate vicinity of the dangerous condition and could easily have noticed and removed it" ( Rose v. Da Ecib USA, 259 A.D.2d 258, 260 [1st Dept 1999] ; citing Catanzaro v. King Kullen Grocery Co., 194 A.D.2d 584 [2d Dept 1993] [finding sufficient evidence from which a jury could impute constructive notice to the defendant where there were several employees working within the vicinity of the spill which caused the plaintiff's fall]; see Altieri v. Golub Corp., 292 A.D.2d 734, 735 [3d Dept 2002] [reversing award of summary judgment and reinstating complaint where "defendants failed to demonstrate that their employee did not create the condition by dropping the foreign substance on the floor during the course of his work or that, in the exercise of reasonable care, he knew or should have known of the foreign substance on the floor in the immediate vicinity of where he was working."] ).
Here, Defendants' met their burden of establishing prima facie entitlement to summary judgment. Defendants presented evidence that they did not create or have constructive or actual notice of the dangerous condition. There was no proof as to how long the glass shard had been present on the floor prior to Plaintiff's injury or its origin. Defendant Gjergji advised he cleaned the premises prior to the event, and inspected and cleaned after the event, and found no broken glasses. Defendants' two employees clearing tables further provided they did not cause, see, hear, or were notified of any broken glass prior to Plaintiff's injury. Defendants further argue the shard of glass was not visible or apparent, and there was no proof it was from their glassware.
Once the movant has made such a showing, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. (See Zuckerman, 49 N.Y.2d at 562 ["mere conclusions, expressions of hope or unsubstantiated allegations or asserts are insufficient."].) "[I]n deciding a motion for summary judgment, the trial court must view all evidence in the light most favorable to the party against whom such judgment is sought and, where there is any doubt as to the existence of a triable issue of fact, it should deny the motion since the goal is issue finding rather than issue determination" ( Swartout v. Consolidated Rail Corp., 294 A.D.2d 785, 786 [3d Dept 2002] [citations omitted]; see also Oritz v. Varsity Holdings, LLC, 18 NY3d 335, 339 [2011] ; Greco v. Boyce, 262 A.D.2d 734, 734 [3d Dept 1999] [holding courts are "to view the evidence in light most favorable to the nonmoving party, affording that party the benefit of all reasonable inferences, and to ascertain whether a material, triable issue of fact exists."] ).
Here, Plaintiff has raised a question of fact or credibility sufficient to warrant denial of summary judgment. This is achieved through the deposition testimony of Mr. Thompson, who avers approximately 15 minutes prior to Plaintiff's injury he observed an individual, who he believed was an employee clearing tables, knock over a glass onto the floor. After Plaintiff was injured, he came over and saw a broken glass on the floor in the immediate vicinity of where Plaintiff was injured. He further observed employees using grey carts to clear tables. Which Plaintiff averred to walking past a clearing cart and next to an employee clearing tables when she stepped on the broken shard of glass.
While a plaintiff cannot speculate to identify the cause of her injury, "proximate cause can be established wholly through circumstantial evidence that renders a defendant's negligence the more likely cause of an action than other potential causes" ( Pascucci, supra, 128 AD3d at 1206 ; see Acton, supra, 147 AD3d at 855). The description by Plaintiff that there was an employee clearing tables where she was injured, and the proximity in time and distance of where Mr. Thompson saw an individual knock over a glass before Plaintiff's injury, cumulatively give rise to a reasonable inference that Plaintiff was injured by a broken glass created by Defendants or within the immediate vicinity of Defendants. Furthermore, the testimony of Plaintiff and Mr. Thompson are corroborated, and challenge the sworn testimony and affidavits of Defendants who aver they were not clearing tables in that area and did not knock over any glasses.
In a light most favorable to the nonmoving-Plaintiff, affording Plaintiff the benefit of all reasonable inferences ( Greco, supra, 262 A.D.2d at 734 ), there is a question of fact and credibility for a trier of fact to resolve as to whether Defendants created the dangerous condition and, since there was an employee in the immediate vicinity, whether the employee knew or should have known of the broken glass on the floor. (See Altieri, supra, 292 A.D.2d at 735 ; see also, 259 A.D.2d at 260 ; Catanzaro, 194 A.D.2d at 584.)
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED that Defendants' motion is DENIED, and all other relief requested therein is denied in its entirety.
This constitutes the Decision and Order of the Court DENYING Defendants' motion for summary judgment. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.
IT IS SO ORDERED.
Papers Considered:
1) Defendants' notice of motion, dated January 3, 2017; affidavit of Sean A. Tomko, Esq., with annexed exhibits, dated January 3, 2017;
2) Affirmation in opposition, of John G. Rusk, Esq., dated February 24, 2017; and
3) Reply affidavit, of Sean A. Tomko, Esq., dated March 2, 2017.
NOTE: Chambers corrected the spelling of the witness' name which was misspelled in the original decision and order.