Opinion
302485/2008.
Decided February 28, 2011.
Jeffrey Lessoff, New York, New York, Counsel for plaintiff.
Robert E. Johnson of Johnson Liebman, LLP, New York, New York, Counsel for defendant.
This motion by 37th Avenue Market, Inc, d/b/a Food Dimensions ("defendant" herein) for summary judgment dismissing plaintiff's action against it is granted.
Plaintiff was injured when she allegedly slipped and fell because of spilled soda in defendant's food market. She testified that she saw the spill on the floor about 10 feet inside the entrance and immediately notified a male employee. Plaintiff estimated she spent the next 30 minutes inside the store shopping and, just before paying for her groceries, notified a second, female employee of the spill. (Deposition testimony of Mercedes Pacheco, November 17, 2009 at 25-28). As plaintiff headed for the entrance to leave the store, she slipped on the same spilled soda and fell. Plaintiff commenced a lawsuit against the defendant and the defendant made the instant motion for summary judgment after the plaintiff was deposed.
Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment ( Andre v Pomeroy, 35 NY2d 361). A party opposing a motion for summary judgment must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact ( Friends of Animals v Associated Fur Manufacturers, 46 NY2d 1065).
A party cannot successfully oppose summary judgment by arguing that additional depositions are needed to demonstrate a triable issue of fact unless it can be shown that the persons already deposed had insufficient knowledge, or were otherwise inadequate, and there is substantial likelihood that the persons sought for deposition possess information which is material or necessary to the prosecution of the case ( Amantides v City of New York, 234 AD2d 490 [2nd Dept 1996]; see also Daniels v Otis Elevator Co., 236 AD2d 330 [1st Dept 1997] citing Zollner v City of New York, 204 AD2d 626 [2nd Dept 1994]).
An expert may only reach conclusions on the basis of established facts. He may not himself create the facts upon which the conclusion is based. ( Wright v NYCHA, 208 AD2d 327 [1st Dept 1995]).
To establish a prima facie case of negligence in a slip and fall case, a plaintiff must prove the defendant had actual or constructive notice of the dangerous or defective condition and sufficient time, within the exercise of reasonable care, to correct or warn about its existence ( Gordon v. American Museum of Natural History, 67 NY2d 836). However, "[l]iability under common-law negligence will not attach when the allegedly dangerous condition complained of was open and obvious, particularly where the injured plaintiff was aware of it" ( Nardi v Crowley Marine Assoc., 292 AD2d 577 [2nd Dept 2002]; Sandler v Patel, 288 AD2d 459 [2nd Dept 2001][no recovery where plaintiff fell, while descending stairs, on alleged defect he had previously seen as he ascended stairs]).
In support of the motion, defendant offered the pleadings, plaintiff's bill of particulars and plaintiff's deposition testimony. Plaintiff testified that she was "in a rush" to do her shopping (Deposition of Mercedes Pacheco, November 17, 2009 at 24). She was asked whether she looked in the same area where she had seen the spill before exiting the store, and she answered that she had ( id. at 35). When asked why she walked in the same area where she had previously seen the spill, she answered, "I don't think that I was gonna fall. I thought I could defend myself" ( id. at 35-36). When asked if she could have walked around the area, she responded "I thought that I could defend. I could think that I was going to deviate from the soda but unfortunately I went to the same place and I slipped" ( id. at 36).
In opposition to the motion, plaintiff offered her own affidavit and the affidavit of her expert, Nicholas Politis. In addition, plaintiff argued that the motion was premature because defendant had not been deposed.
Plaintiff stated in her affidavit, dated July 13, 2010, that "[i]t was only when I fell did I realize that the spill was never cleaned up". She believed "enough time had passed" that it was "taken care of".
Mr. Politis, a professional engineer, reviewed plaintiff's deposition testimony and stated in his affidavit dated July 13, 2010, that the defendant had a duty set forth in the Administrative Code to keep ingress and egress in a safe condition and defendant had violated that duty in this instance.
Defendant has demonstrated its entitlement to summary judgment which the plaintiff has not refuted with admissible evidence. It is not necessary to have defendant's deposition testimony to know whether there are issues of fact such as whether plaintiff's estimate of the amount of time she spent in the store was accurate or whether the first person she told of the spill was actually an employee of the store. Crediting all of plaintiff's testimony as true, she testified that she was fully aware of the dangerous condition and nevertheless walked on it because she did not think she would fall. Her subsequent statement, in an affidavit drafted for purposes of opposing the motion, that she was unaware of the spill as she left because she "believed" it should have been cleaned up by then, contradicts her deposition testimony and is insufficient to raise a material issue of fact. Plaintiff cannot create her own issue of fact.
Plaintiff's expert's affidavit alleging a violation of the Administrative Code is similarly insufficient. Mr. Politis did not visit the location or view photographs. His conclusion that plaintiff was injured in the entrance to the store is inconsistent with her testimony that she fell some 10 feet away from the entrance and with her testimony that she could have taken a different path to the exit, but thought it was not necessary because she could "defend" herself.
Movant is directed to serve a copy of this order on the Clerk of Court who shall amend the caption to delete the name of "37th Avenue Market, d/b/a Food Dimensions" as a party defendant.
This constitutes the decision and order of the court.