Rosales v. Museum of Modern Art

Full title: Luis R. Rosales and ROSARIO ROSALES, Plaintiffs, v. Museum of Modern Art…

Court: Supreme Court, Queens County

Date published: Oct 2, 2017

2017 N.Y. Slip Op. 51482 (N.Y. Sup. Ct. 2017)

Opinion

8004/2012

10-02-2017

Luis R. Rosales and ROSARIO ROSALES, Plaintiffs, v. Museum of Modern Art and MOMA, LLC, Defendants.

Robert J. McDonald, J.

The following papers numbered 1 to 20 read on this motion by defendants for an Order pursuant to CPLR 3212, granting defendants summary judgment and dismissing all claims asserted against defendants; and on this cross-motion by plaintiffs for an Order pursuant to CPLR 3212, granting plaintiffs summary judgment or pursuant to CPLR 3126, striking the answer of defendants on the grounds that defendants engaged in spoliation or, in the alternative, precluding defendants from offering evidence or argument at the time of trial regarding the manner in which the subject accident occurred, the condition of defendants premises, the condition of the instrumentality involved in this occurrence, and actual and constructive notice to defendants:

Papers/Numbered

Notice of Motion-Affirmation-Exhibits 1 - 4 Affirmation in Opposition-Exhibits-Memo. of Law 5 - 8 Reply Affirmation 9 - 10 Notice of Cross-Motion-Affirmation-Exhibits 11 - 14 Affirmation in Opposition-Exhibits 15 - 17 Reply Affirmation and Memorandum of Law-Exhibits 18 - 20

This is an action to recover damages for personal injuries allegedly sustained by plaintiff Luis Rosales on January 28, 2011 when he tripped and fell at the entrance to the Museum of Modern Art (MoMa) located at 25 West 53rd Street, in New York County, New York.

This action was commenced by the filing of a summons and complaint on April 15, 2012. Issue was joined by service of defendants' verified answer on May 11, 2012. Defendants now move for an order pursuant to CPLR 3212, granting defendants summary judgment and dismissing plaintiffs' complaint on the grounds that there are no material issues of fact which may serve to establish liability on the part of defendants. Plaintiffs cross-move for, inter alia, summary judgment on the grounds that defendants engaged in spoliation of material and relevant evidence.

On December 9, 2013, plaintiff Luis R. Rosales appeared for an examination before trial. He testified that on January 28, 2011 between 3:35 p.m. and 3:40 p.m., he was involved in a trip and fall at the MoMa. At the time of the incident, he was employed as a porter and foreman with non-party Collins Building Services, Inc. (Collins). The incident occurred at the 25 West 53rd Street entrance. He always used the same entrance to enter the premises as this was one of the designated employee entrances. He opened the door, took one step, and fell. There were other people walking in the subject area before the incident occurred. The area where he fell was well lit and there was nothing obstructing his vision. Outside, it was cloudy and there was snow on the ground. The front part of the entrance mat was raised up and scrunched in small hills about four or five inches high. All of the front part of the mat was in that condition. He had noticed this condition before the incident occurred. The mat went from the door all the way to a little before the security desk. The security desk is fifteen to twenty feet away from the door where he fell. The mat was approximately three feet wide. He took one step into the building, and then immediately fell. He complained on three or four occasions about the condition of the subject mat to his supervisors and the building manager before the incident occurred. He advised his supervisor, Anthony Cuomo, three or four times that the mat was in this condition. He also complained to the assistant manager for MoMa, Nelson Yeves. The condition of the mat existed for many months prior to the subject incident. There is no written record of these complaints. After he fell, he was not able to get up by himself. He remained on the ground for approximately twenty-five to thirty minutes until the security officer, Mr. Pittman, and Collins employee, Alfredo Fuentes, picked him up and brought him to the security office. An ambulance took him to Bellevue Hospital.

Gregory Pittman, the security officer for MoMa at the time of the alleged incident, appeared for an examination before trial on behalf of defendants on April 28, 2014. He testified that he was working on the day of plaintiff's incident. He did not witness the fall, but he did hear the fall. After plaintiff's fall, he heard an "uhh" sound and went to the entrance to observe what happened. He observed plaintiff on the floor near the entrance door. He asked plaintiff if he needed a supervisor or medical assistance. Plaintiff declined any assistance and walked to the mezzanine downstairs on his own without any assistance.

On August 7, 2014, Lillian Reese, the security supervisor for MoMa at the time of the alleged incident, appeared for an examination before trial on behalf of defendants. She testified that she did not witness plaintiff's fall and has never spoken to anyone about plaintiff's incident.

L.J. Hartman, the director of security for MoMa at the time of the alleged incident, appeared for an examination before trial on behalf of defendants on November 18, 2014. She was not aware of any investigations taking place regarding plaintiff's incident. No photographs related to this incident were taken.

On April 28, 2014, James Majewski, the project manager for Collins at the time of the alleged incident, appeared for an examination before trial on behalf of non-party Collins. He testified that he was the direct supervisor of plaintiff. Plaintiff was employed at Collins as a mid-shift foreman at the MoMa. Plaintiff's duties included buffing and cleaning carpets. Whenever Collins' staff would place the entrance mats on the floor they would tape the mats on both ends to prevent the mat from curling up and to avoid tripping hazards. The entrance mats would be placed beyond the second set of doors at the premises and would start a little bit past where the doors opened up. The entrance mat was located about a foot past the door. In January 2011, all the entry mats placed down at the premises were relatively new. He spoke to plaintiff approximately fifteen minutes after the incident. After speaking with plaintiff and Mr. Pittman, he generated an incident report. He then inspected the mat's condition. He saw that the mat was taped and laid as they always were laid. The mat was in good condition.

Based on the submitted testimony, counsel for defendants contends that defendants are entitled to summary judgment as they were not negligent in the maintenance of the premises and as there was no dangerous or defective condition present. Additionally, there is no testimony that defendants received any complaints related to the condition of the entry mat other than plaintiff's own self-serving testimony. Lastly, counsel contends that the incident could have been caused by some other fact such as a misstep or loss of balance. Moreover, Mr. Majewski testified that the entry mat was in good condition and no defective condition existed.

In opposition, plaintiffs' counsel contends that defendants failed to demonstrate that they did not have notice of the defective and dangerous condition. Plaintiff testified that he complained about the condition of the mat on three or four occasions to his supervisors and the building manager before the incident occurred. Moreover, counsel contends that defendants failed to offer any evidence as to when the area was last inspected prior to the incident. Lastly,counsel contends that defendants failed to meet their initial burden of showing that they did not create the hazardous condition as plaintiff's own testimony demonstrates that defendants failed to follow their practice which was to lay the mat flat and tape it down. Specifically, in contrast to defendants' practice, plaintiff testified that there were hills approximately four to five inches high on the mat. Plaintiffs also submit an expert affidavit from Alvin Ubell, an Architect and Safety and building inspector, dated August 21, 2017. Mr. Ubell affirms that a carpet in the lobby should be flat and flush to the floor and taped on all of its edges to not become a tripping hazard. It is good and accepted practice and safe building practice to do so. He basis his affidavit on the Consumer Product Safety Commission reports, the Natural Safety Council Data Sheet 495, and the industry standards.

In reply, defendants' argue that plaintiffs failed to demonstrate that there was a dangerous or defective condition at the premises. Specifically, defendants rely on Mr. Majewski's testimony that the mat was in good condition and was relatively new at the time of the subject incident. Moreover, Mr. Majewski testified that after plaintiff's fall, his inspection of the entry mat revealed that the mat was in good order and condition.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his or her position (see Zuckerman v City of New York, 49 NY2d 557[1980]).

A defendant owner or entity who is responsible for maintaining a premises who moves for summary judgment in a trip-and-fall case involving the property 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 (see Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655 [2d Dept. 2009]; Bruk v Razag, Inc., 60 AD3d 715 [2d Dept. 2009]). 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 discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). "To meet their initial burden on the issue of lack of constructive notice, the defendants must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Birnbaum v New York Racing Association, Inc., 57 AD3d 598 [1986]; see Pryzywalny v New York City Tr. Auth., 69 AD3d 598 [2d Dept. 2010]; Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655 [2d Dept. 2009]; Braudy v Best Buy Co., Inc., 63 AD3d 1092 [2d Dept. 2008]).

Here, defendants failed to offer sufficient evidence that they did not have actual or constructive notice of the allegedly hazardous condition. Plaintiff testified that prior to his fall, he advised his supervisor, Anthony Cuomo, three or four times that the mat was not in good condition. He also testified that he complained about the mat to the assistant manager for MoMa, Nelson Yeves. Accordingly, and viewing the evidence in the light most favorable to the non-moving party, defendants failed to establish that they did not have actual notice of the dangerous condition. Moreover, defendants failed to offer any evidence as to when the subject mat had last been inspected prior to the injured plaintiff's fall. Thus, defendants failed to make a prima facie showing that it did not have constructive notice of the alleged dangerous condition of the condition which caused plaintiff's fall (see Baratta v Eden Roc NY, LLC, 95 AD3d 802 [2d Dept. 2012]; Levine v Amverserve Assn., Inc., 92 AD3d 728 [2d Dept. 2012]; Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655 [2d Dept. 2009]). As defendants failed to establish their entitlement to judgment as a matter of law, it is not necessary to consider the sufficiency of the opposition papers submitted by plaintiffs (see Dixon v Superior Discounts & Custom Muffler, 118 AD3d 1487 [2d Dept. 2014]; Maloney v Farris, 117 AD3d 916 [2d Dept. 2014]; Giraldo v Twins Ambulette Serv., Inc., 96 AD3d 903[2d Dept. 2012]; King v 230 Park Owners Corp., 95 AD3d 1079[2d Dept. 2012]; Hill v Fence Man, Inc., 78 AD3d 1002 [2d Dept. 2010]).

In any event, material issues of fact exist. Here, the parties have presented contradictory testimony as to the condition of the mat at the time of plaintiff's fall. To demonstrate that defendants did not owe plaintiff any duty as a defect did not exist, defendants present Mr. Majewski's testimony that immediately after plaintiff's fall he inspected the mat and found the mat taped and laid flat. However, plaintiff testified that the mat was raised or scrunched up about four or five inches high. As the testimony is contradictory, there are issues of credibility which must be determined by the trier of fact rather than on a motion for summary judgment (see Conciatori v Port Auth. of NY & N. J., 46 AD3d 501 [2d Dept. 2007]["A court may not weigh the credibility of witnesses on a motion for summary judgment, unless it clearly appears that the issues are not genuine, but feigned"]; Boockvor v Fischer, 56 AD3d 405 [2d Dept. 2008]; Makaj v Metropolitan Transp. Auth., 18 AD3d 625 [2d Dept. 2005]).

Turning to plaintiffs' cross-motion, to prevail on a motion for summary judgment on the grounds that there has been spoliation of evidence, plaintiffs bear the burden of establishing that "1) defendant had an obligation to preserve the video at the time it was deleted, and 2) that it was deleted with a culpable state of mind, which may include ordinary negligence, and 3) the deleted video was relevant to the plaintiff's claim such that the trier of fact could find that the evidence would support the claim" (Macias v Asal Realty, LLC, 2015 NY Slip Op 32684[U][Sup. Ct., Bronx Cnty., 2015][internal quotation marks omitted], aff'd 148 AD3d 622 [1st Dept. 2017]); Lentini v Weschler, 120 AD3d 1200 [2d Dept. 2014]). A negligent erasure of surveillance can only give rise to "the imposition of spoliation sanctions under New York's common-law spoliation doctrine, if the alleged spoliator was on notice that the [videotapes] might be needed for future litigation" (Strong v City of New York, 112 AD3d 15, 22 [1st Dept. 2013][internal quotation marks omitted]).

Plaintiffs counsel contends that defendants willfully and intentionally destroyed material and relevant evidence regarding the manner in which this incident occurred, the condition of the subject mat, and the condition of the premises. Specifically, plaintiffs contend that defendants had actual knowledge on the day of the incident that plaintiff was injured on their premises by a defective condition on the premises. However, the security department failed to preserve and deleted computerized video recordings of the incident itself, the condition of the premises at the time of the incident, and the condition of the premises preceding the incident. Moreover, and despite such knowledge, defendants discarded the subject mat.

In opposition to the cross-motion, defendants submit that the affidavit of Tunji Adeniji dated May 1, 2013 demonstrates that defendants do not possess the surveillance footage because defendants did not receive notice of the lawsuit until April 2012, over a year after plaintiff's incident occurred. The affidavit further indicates that defendants have a 30 day retention procedure. After 30 days, all video is erased and recorded over. Tunji Adeniji further affirms that defendants do not possess a surveillance video recording of plaintiff's incident. Additionally, Ms. Hartman testified that the surveillance cameras record for a period of thirty days and then the system automatically records over itself and the prior footage is erased. She further testified that when plaintiff's incident occurred, there was no procedure with respect to preserving surveillance footage. Based on the affidavit and testimony, defendants contend that there is no evidence that defendants willfully and with a culpable state of mind actively deleted the video surveillance of the subject incident or the mat.

Upon a review of the cross-motion, opposition, and reply thereto, this Court finds that plaintiffs failed to demonstrate that defendants willfully or with a culpable state of mind actively deleted the video or discarded the subject mat. Moreover, as plaintiffs have not been deprived of the ability to establish their case, this Court finds that no sanction is appropriate at this time (Pennachio v Costco Costco Wholesale Corp., 119 AD3d 662 [2d Dept. 2014]; Denoyelles v Gallagher, 40 AD3d 1027 [2d Dept. 2007]). As to whether plaintiffs are entitled to an adverse inference charge, such is left with the discretion of the Trial Judge at the time of trial.

Accordingly, for the above stated reasons, it is hereby

ORDERED, that defendants' motion for summary judgment is denied; and it is further

ORDERED, that plaintiffs' cross-motion is denied. Dated: October 2, 2017 Long Island City, NY ______________________________

ROBERT J. MCDONALD

J.S.C.