Opinion
Index 602535/2019
01-13-2022
LISA MARIE NOXON, Plaintiff, v. BUONADONNA SHOP RITE, LLC, d/b/a SHOP RITE OF BAY SHORE, Defendant, Cal. No. 2020000428OT
SIBEN & SIBEN, LLC Attorney for Plaintiff TORINO & BERNSTEIN, P.C. Attorney for Defendant
Unpublished Opinion
SIBEN & SIBEN, LLC Attorney for Plaintiff
TORINO & BERNSTEIN, P.C. Attorney for Defendant
PRESENT: Hon. KATHY G. BERGMANN Justice of the Supreme Court
Kathy G. Bergmann, Judge
Upon the following papers read on this motion for summary judgment: Notice of Motion and supporting papers by defendant dated June 25, 2020: Answering Affidavits and supporting papers bv plaintiff, dated October 9, 2020: Replying Affidavits and supporting papers by defendant, dated October 26, 2020: it is
ORDERED that the motion by defendant Buonadonna Shop Rite, LLC, for summary judgment dismissing the complaint against it is denied.
This action was commenced by plaintiff Lisa Marie Noxon to recover damages for injuries she allegedly sustained on July 7, 2018, when she slipped on a wet floor and fell into a metal rack inside the Shop Rite supermarket in Bay Shore, New York. It is undisputed that defendant Buonadonna Shop Rite, LLC, d/b/a Shop Rite of Bay Shore, owned the subject premises.
Buonadonna Shop Rite, LLC (Shop Rite) now moves for summary judgment in its favor, arguing that it did not cause the alleged defective floor condition, nor did it have actual or constructive notice thereof; In support of its motion, Shop Rite submits, among other things, transcripts of the parties' deposition testimony, a transcript of nonparty Michael Minelli's deposition testimony, multiple photographs, a copy of security camera footage, a copy of a customer incident report, an affidavit of Robert Jenzen, and an affidavit of Matthew Fernandez.
Plaintiff testified that at approximately 3:15 p.m. on the date in question, she was shopping for groceries in aisle 16 of the Shop Rite supermarket in Bay Shore, New York. She stated that aisle 16 featured frozen foods in glass eases on each side, but also had two metal "carts" in the center of its walkway displaying other foods. Plaintiff indicated that as she walked, her right foot slipped on a "yellowish," "oily," wet spot on the floor, causing the right side of her body to strike one of me displays in the center of the aisle. She testified that she had not seen the circular, two-inches-in-diameter wet spot before slipping on it, because she had been looking straight ahead.
Robert Jenzen testified that at the time of plaintiff s incident he was an assistant manager of the Bay Shore Shop Rite. He stated that the supermarket is approximately 50, 000 square feet in size, with 18 aisles of products on display. Questioned regarding the store's inspection procedures, he explained that there are "no more than two" maintenance employees who "walk the floor all day long, up and down the aisles," but that those employees do not keep any record of their inspections. Mr. Jenzen also indicated that while the one or two employees inspecting the store do not have any set inspection schedule, he believed it would take approximately 15 minutes to examine the entire store if no stops were made.
In an affidavit submitted in support of defendant's instant motion, Mr. Jenzen states, in relevant part, that die store had not received any prior notification of a spill at the subject location, but mat at the time of plaintiff s incident he observed small droplets of water on the floor, but no marks, smudges, footprints, discoloration, or other indication of water having been on the ground for a long period of time. He avers that, in addition to the inspections conducted oh an ongoing basis by maintenance employees, "it is also [his] responsibility as Assistant Manager to continuously walk around the store throughout die day," looking for hazardous conditions, which he does "at least once every hour." Mr. Jenzen further states that "based upon [his own] hourly inspections that are conducted every day, [he] inspected the subject incident location in aisle 16 no more than 20 minutes prior to the plaintiffs incident."
In a second affidavit submitted in support of the instant motion, Matthew Fernandez states that or. the date in question he was employed by the Bay Shore Shop Rite. He indicates that a portion of his duties included stocking frozen food items in aisles 16 and 17 at the store, as well as "continuously inspecting the frozen food section for hazardous conditions on the floor." Mr. Fernandez further states that "[a]s part of [his] duties, and as [he] did throughout [his] shift on July 7, 2018, [he] inspects] aisle 16 at least once every 15 minutes, either by walking down the aisle or observing the length of the aisle from a vantage point of each perpendicular aisle at the end of aisle 16." He avers mat on the subject date he Worked a 12:00 p.m, to 6:00 p.m. shift, and that during such time he was "carrying out [his] usual duties and responsibilities... including inspecting the. aisle every 15 minutes." "Accordingly," he states, "[he] inspected the subject incident (sic) located in aisle 16 no more than 15 minutes prior to the happening of plaintiff s incident" and saw no hazardous condition.
A party moving for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate die absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ, Med. Ctr, 64 N.Y.2d 851, 853). If the moving party produces the requisite evidence, the burden then shifts to the nonrrioving party to establish the existence of material issues of fact which require a trial of the action (see Vega v Restani Constr. Corp., 18 N.Y.3d 499). Mere conclusions, expressions of hope, or unsubstantiated allegations are insufficient to raise a triable issue (see Zuckerman v City of New York, 49 N.Y.2d 557). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (see Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339).
The owner or possessor of real property has a duty to maintain the property in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries (see Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606 [1980]; Milewski v Washington Mat., Inc., 88 A.D.3d 853, 931 N.Y.S.2d 336 [2d Dept 2011]). In a premises liability case, a defendant real property owner who moves for summary judgment "has the burden of making a prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence" (Parietti v Wal-Mart Stores, Inc., 29 NY3d 1136, 1137, 61 N.Y.S.3d 523 [2017]; see Lauzonv Stop & Shop Supermarket, 188 A.D.3d 856, 2020 NY Slip Op 06513 [2d Dept 2020]; Gani v. Avenue R Sephardic Congregation, 159 A.D.3d 873, 72 N.Y.S.3d 561 [2d Dept 2018]), A defendant has constructive notice of a hazardous condition on property "when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it" (Torre v Aspen Knolls Estates Home Owners Assn., Inc., 150 A.D.3d 789, 790, 54 N.Y.S.3d 84 [2d Dept 2017]; see Gordon v American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646 [1986]). Further, "the question of whether a reasonable time has elapsed may be decided as a matter of law by the court, based upon the circumstances of the case" (Riviere v City of New York, 127 A.D.3d 720, 720-721, 7 N.Y.S.3d 219 [2d Dept 2015]). Finally, "[t]o meet its burden on the issue of lack of constructive notice, a defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the accident (Johnson v 101-105 S. Eighth St. Apts. Hous. Dev. Fund Corp., 185 A.D.3d 671, 672, 124 N.Y.S.3d 852 [2d Dept 2020]; see Rong Wen Wu v Arniotes, 149 A.D.3d 786, 50 N.Y.S.3d 563 [2d Dept 2017]);
Shop Rite failed to establish a prima facie case of entitlement to summary judgment in its favor (see Fortune v W. Beef, Inc., 178 A.D.3d671, 115 N.Y.S.3d93 [2dDept2019]; see generally Alvarez v Prospect Hosp., supra). Namely, it did not demonstrate when the area in question was last inspected prior to plaintiffs incident, Instead, Shop Rite merely offered evidence of its general cleaning protocols. "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" (Herman v Lifeplex, LLC, 106 A.D.3d 1050, 1051, 966 N.Y.S.2d 473 [2d Dept 2013]). While defendant attempted to demonstrate when the area in question was last inspected through the definitively-worded affidavits of Mr. Jenzen and Mr. Fernandez, a close reading of those affidavits, as well as Mr. Jenzen's deposition testimony, reveals that both witnesses are extrapolating from their general cleaning practices (see Griffin v PMV Realty, LLC, 181 A.D.3d 912, 119 N.Y.S.3d 876 [2d Dept 2.020]). Despite his insistence that he inspected the area of plaintiff s accident "no more than 15 minutes" earlier, Mr. Fernandez does not specify how he obtained such knowledge, or how he ensured that no more than IS minutes elapsed between his inspections. Nor does he make reference to checking a clock, being reminded by an alarm, or initialing an inspection checklist Thus, the Gourt is left with the impression that Mr. Fernandez's affidavit only delineates what he "probably" did, given his usual practices. Even assuming, arguendo, that Mr. .Fernandez's affidavit was sufficient to establish, prima facie, when the incident location was last inspected, the security camera footage raises questions regarding the accuracy of Mr. Fernandez's assertions. Accordingly, the motion by defendant Buonadonna Shop Rite, LLC, for summary judgment dismissing the complaint against it is denied.