Opinion
010469/07.
December 22, 2010.
Papers Submitted:
Notice of Motion (Mot. Seq. 01)..............x Memorandum of Law............................x Notice of Cross-Motion (Mot. Seq. 02)........x Affirmation in Opposition....................x Affirmation in Opposition....................x Affirmation in Opposition/Reply..............x Reply Affirmation............................x Reply Affirmation............................x Reply Affirmation............................xUpon the foregoing papers, the motion by the Third-party Defendant, Samuel Cockburn Sons, Inc., ("Cockburn") seeking an order pursuant to CPLR § 3212 granting it summary judgment dismissing the complaint and the Cross-motion by the Plaintiff seeking an order pursuant to CPLR § 3212 granting him summary judgment on the issue of liability are determined as herein provided.
This is an action to recover damages for personal injuries allegedly sustained by the Plaintiff on May 6, 2007.
In his bill of particulars, the Plaintiff alleges that "[t]he incident occurred at the hospital emergency entrance location at North Shore University Hospital, 300 Community Drive, Manhasset, New York 11040, upon the roadway adjacent to the security booth." The Plaintiff alleges that he may have fallen on loose sand, gravel and/or dirt in the somewhat public roadway in close proximity to the renovation site.
Procedural Background:
The Plaintiff commenced this action by the filing of a summons and complaint with the Nassau County Clerk on June 14, 2007. The Defendant, North Shore University Hospital ("NSUH") joined issue by the service of a verified answer with a cross-claim.
The Defendant, Axis Construction Company (Axis) was originally named as a defendant. The Plaintiff, however, discontinued the action against Axis.
Eighteen months thereafter, NSUH commenced a third-party action against Third-party Defendant, Cockburn. Cockburn joined issue by the service of an answer to the Third-party complaint.
On or about April 22, 2010, The Plaintiff filed the note of issue and certificate of readiness.
Parties:
Axis was hired by NSUH to act as the construction manager in charge of certain work which was being performed at NSUH. Axis apparently cut a trench by the old security booth, which required the breaking up of the pavement and the importing of compacted gravel.
Cockburn, a landscaping and construction business, was awarded the bid for the hospital emergency room entrance renovation project. Michael Cockburn was present every day that Cockburn performed work at the site.
Cockburn's responsibilities for the project included reconstructing a railroad tie retaining wall, planting shrubs and installing a sprinkler system. These retaining walls were located to the right of the hospital's entrance, across from the security guard booth.
At his Examination Before Trial, the Plaintiff described the portion of roadway where the accident allegedly occurred as "a drop, like a step . . ." and there was a "a paved part" and "part that was unpaved" (Plaintiff's EBT transcript, p. 22). Mr. Nunez further testified that he believed the accident area was "most likely, unpaved" but did not really remember it ( Id.).
Approximately two months after this EBT, the Plaintiff submitted an errata sheet whereby he corrected his testimony to read that he "believe[s] it was the loose gravel under [his] feet that caused him to fall."
In response to the Plaintiff's change in testimony, his counsel claims that "there is nothing disingenuous about his changes [on the errata sheet] at all as he is a young man who was very nervous at the time of his deposition."
Cockburn moves for summary judgment on the grounds that: a) the Plaintiff has not produced any evidence of the existence of a defective condition on the hospital premises which caused him to fall; b) "if plaintiff, in fact, fell on the gravel in the roadway, the gravel was an open and obvious condition which was not inherently dangerous and also which plaintiff testified he was aware was on the roadway" (Point II, Memorandum of Law); and c) there is no evidence that Cockburn created any defective condition on defendant's hospital premises.
In support thereof, Cockburn relies upon the Plaintiff's deposition testimony; the deposition testimony of Michael Cockburn; the deposition testimony of Mr. Chintaman Dhaniram, the project manager for NSUH; and photographs of the hospital premises where the Plaintiff's accident occurred.
NSUH opposes Cockburn's motion claiming that issues of fact exist as to how and why the Plaintiff fell and whether or not Cockburn had caused or created a potentially hazardous condition at the alleged accident site.
The Plaintiff moves for summary judgment against NSUH arguing that no issues of fact exist as to the Defendants' liability. Specifically, the Plaintiff submits that "[i]t is undisputed that the plaintiff was on hospital property when he fell and that the area in which he fell was filled with dirt, debris, and uneven ground that caused even the hospital's own employee upon viewing the site, to express disgust" (p. 3 of Mr. Mater's Affirmation). In support thereof, the Plaintiff relies upon the deposition testimony of an independent eyewitness named Jeffrey Ingber.
At his Examination Before Trial, Jeffrey Ingber testified that he was an ambulance driver at the time the Plaintiff fell and that the Plaintiff was slipping and sliding on the gravel.
In opposition, NSUH asserts that the facts of the alleged accident are not undisputed as the Plaintiff's counsel suggests and there has been no evidence of prima facie negligence on NSUH's part. In particular, NSUH contends that it has not been proven that NSUH created the alleged dangerous condition or had constructive or actual notice of any condition relating to an unpaved/paved portion of road or an accumulation of sand, dirt or gravel; and the Plaintiff is not exactly sure how the accident occurred.
On a motion for summary judgment, it is incumbent upon the movant to 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 ( Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324; Zuckerman v. City of New York, 49 N.Y.2d 557, 562). The failure to make that showing requires the denial of the motion regardless of the sufficiency of the opposing papers ( Mastrangelo v. Manning, 17 A.D.3d 326 [2d Dept. 2005]; Roberts v. Carl Fenichel Community Servs., Inc., 13 A.D.3d 511 [2d Dept. 2004]). Issue finding, as opposed to issue determination, is the key to summary judgment ( see Kris v. Schum, 75 N.Y.2d 25). Indeed, "[e]ven the color of a triable issue forecloses the remedy" ( Rudnitsky v. Robbins, 191 A.D.2d 488, 489 [2d Dept. 1993]).
Summary judgment is rarely appropriate in negligence actions ( Ugarriza v. Schmeider, 46 N.Y.2d 471, 475), even where the salient facts are conceded, since the issue of whether the defendant or the plaintiff acted reasonably under the circumstances is generally a question for jury determination ( Andre v. Pomeroy, 35 N.Y.2d 361, 364; Davis v. Federated Department Stores, Inc., 227 A.D.2d 514 [2d Dept. 1996]; see John v. Leyba, 38 A.D.3d 496 [2d Dept. 2007]).
"A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a 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" ( Birnbaum v. New York Racing Ass'n, Inc., 57 A.D.3d 598 [2d Dept. 2008]; Yioves v. T.J. Maxx, Inc., 29 A.D.3d 572, 572; see Britto v. Great Atl. Pac. Tea Co., Inc., 21 A.D.3d 436; Joachim v. 1824 Church Ave., Inc., 12 A.D.3d 409; Stumacher v. Waldbaum, Inc., 274 A.D.2d 572). Only after the movant has met this threshold burden will the court examine the sufficiency of plaintiff's opposing papers ( see Britto v. Great Atl. Pac. Tea Co., Inc., supra; Joachim v. 1824 Church Ave., supra). "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's employees to discover and remedy it" ( Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837; Birnbaum v. New York Racing Ass 'n, Inc., supra).
To satisfy its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell (Id, see Porco v. Marshalls Dept. Stores, 30 A.D.3d 284, 285; Feldmus v. Ryan Food Corp., 29 A.D.3d 940, 941; Yioves v. T.J. Maxx, Inc., supra; Britto v. Great Atl. Pac. Tea Co., Inc., supra; Lorenzo v. Plitt Theatres, Inc., 267 A.D.2d 54, 56).
Further, a "general awareness" that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused the plaintiff's fall. ( Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967).
On a third-party defendant's motion for summary judgment, the court must accept a plaintiff's pleadings as true and view the facts in a light most favorable to the plaintiff. Lemonda v. Sutton, 268 A.D.2d 383 [1st Dept. 2000].
Applying these principles to the case at bar, we conclude that Cockburn has not demonstrated its prima facie case. Issues of fact exist with respect to whether a dangerous condition existed at the hospital and/or whether Cockburn or NSUH had constructive notice of the alleged condition and whether it was an open and obvious condition. The conflict between the evidence submitted by the Plaintiff and that submitted by NSUH and Cockburn demonstrates the existence of issues that should be resolved at trial and not on a motion for summary judgment.
In a similar vein, the Plaintiff has not made a prima facie showing of entitlement to judgment as a matter of law as against NSUH. "[The] owner of premises cannot be held liable for injuries caused by an allegedly defective condition unless the plaintiff establishes that the owner either created or had actual or constructive notice of the condition"( Wolf v. Fairfield Inn, 77 A.D.3d 927 [2nd Dept. 2010]; Bolloli v. Waldbaum, Inc., 71 A.D.3d 618, 619 [2d Dept. 2010]). No such showing has been made here. Notably, the Plaintiff's affidavit submitted in opposition to the Defendants' motion contradicted his prior deposition testimony ( Amplo v. Mildon Ave. Realty Associates, 53 A.D.3d 750 [2d Dept. 2008]).
In view of the foregoing, the motion and cross-motion are DENIED.
This constitutes the order and judgment of this court.