Opinion
4666/2009.
Decided April 15, 2011.
Upon the foregoing papers it is ORDERED that the motion is disposed of as follows:
This is an action in personal injury stemming from a slip and fall accident which allegedly occurred on July 5, 2008 at the Ramapo Rest Area on I-87. Plaintiff claims to have slipped and fell on a wet floor while entering the subject premises and sustained injuries.
Defendant UV Sales, Inc. ("UV Sales") initially moves for summary judgment claiming that they owe no duty to plaintiff since they were not responsible for the maintenance of the area at issue. UV Sales claims that defendant L-K Bennett Enterprises, LLC ("L-K Bennett") had sole maintenance responsibility for the area where plaintiff fell and it merely subleased a small kiosk within the confines of L-K Bennett's space. Moreover, UV Sales claims that even if it had a duty to plaintiff, it lacked constructive notice of the alleged condition. Both plaintiff and co-defendant L-K Bennett oppose claiming first that UV Sales failed to make out its prima facie case for summary judgment and even if it did, it assumed a duty by removing a wet floor sign allegedly placed by an L-K Bennett employee which created the hazardous condition by removing the warning L-K Bennett placed at the accident site.
Defendant L-K Bennett similarly moves for summary judgment, claiming that it lacked notice of the condition, that plaintiff did not know what caused her to slip, and that it was UV Sales' intervening act of removing the wet floor sign which broke any causal connection between it and plaintiff's subsequent accident. Plaintiff and UV Sales similarly oppose L-K Bennett's motion, again claiming that L-K Bennet failed to make out a prima facie case.
Summary judgment is a drastic remedy that "should not be granted where there is any doubt as to the existence of a triable issue" (citations omitted). In its analysis of such a motion, a court must construe the facts in a light most favorable to the nonmoving party so as not to deprive that person his or her day in court (citations omitted). Russell v A. Barton Hepburn Hosp., 154 AD2d 796, 797 (3rd Dept. 1989); See also, Mascots v Oarlock, 23 AD2d 943, 944 (3rd Dept., 1965).
While summary judgment is an available remedy in some cases, its dire effects preclude its use except in "unusually clear" instances. Stone v Aetna Life Ins. Co., 178 Misc. 23, 25 (Sup. Ct., New York County, 1941). "A remedy which precludes a litigant from presenting his evidence for consideration by a jury, or even a judge, is necessarily one which should be used sparingly, for its mere existence tends to alter our jurisprudential concept of a day in court.'" Danger v Zea, 45 Misc 2d 93, 94, (Sup. Ct., Albany County, 1965), aff'd 26 AD2d 729 (3rd Dept. 1966). Given the fact that summary judgment is the procedural equivalent of a trial, granting summary judgment requires that no material or triable issues of fact exist. When doubt exists or where an issue is arguable, or "fairly debatable," summary judgment must be denied. Bayesian v HF Horn, 21 AD2d 714 (1st Dept. 1964); Jones v County of Herkimer, 51 Misc 2d 130, 135 (Sup. Ct., Herkimer County, 1966); Town of Preble v Song Mountain, Inc., 62 Misc 2d 353, 355 (Sup. Ct., Courtland County, 1970); See also, Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 404 (1957). The drastic remedy of summary judgment is rarely granted in negligence cases since the very question of whether the defendant's conduct was indeed negligent is a jury question except in the most glaring cases. See, Johannsdottir v Kohn, 90 AD2d 842 (2nd Dept. 1982).
Courts are not authorized to try issues in a case, but rather to determine whether there is an issue to be tried. Esteve v Abad, 271 AD2d 725, 727 (1st Dept. 1947). "Issue-finding, rather than issue-determination, is the key to the procedure. If and when the court reaches the conclusion that a genuine and substantial issue of fact is presented, such determination requires the denial of the application for summary judgment." Id.; Sillman, 3 NY2d at 404.
According to the Court of Appeals, "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [citations omitted]. Failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the opposing papers [citations omitted]." Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985); Ayotte v Gervasio, 81 NY2d 1062, 1063 (1993); Finkelstein v Cornell University Medical College, 269 AD2d 114, 117 (1st Dept. 2000).
It is well established that "[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985); Ayotte v Gervasio, 81 NY2d 1062, 1063 (1993); Finkelstein v Cornell University Medical College, 269 AD2d 114, 117 (1st Dept. 2000). The moving party must affirmatively demonstrate the merits of its claim or defense, and cannot obtain summary judgment merely by "pointing to gaps in its opponent's proof." Kajfasz v Wal-Mart Stores, Inc., 288 AD2d 902, 902 (4th Dept. 2001); Dodge v City of Hornell Industrial Development Agency, 286 AD2d 902, 903 (4th Dept. 2001); Frank v Price Chopper Operating Co., Inc., 275 AD2d 940 (4th Dept. 2000).
A party moving for summary judgment has the burden of submitting evidence, in admissible form, to support his motion. Zuckerman v City of New York, 49 NY2d 557, 562 (1980). Unsworn documents are inadmissible evidence and thus a party's reliance thereon in support of a motion for summary judgment is improper. See, Huntington Crescent Country Club v M M Auto Marine Upholstery, Inc., 256 AD2d 551, 551 (2nd Dept. 1998).
"In moving for summary judgment, the defendant [bears] the initial burden of establishing that it maintained its premises in a reasonably safe condition, had no actual or constructive knowledge of the [condition] and did not create the allegedly dangerous condition." Petrell v Victory Markets, Inc., 283 AD2d 955 (4th Dept. 2001); Grant v Radamar Meat, 294 AD2d 398, 398 (2nd Dept. 2002); Atkinson v Golub Corporation Company, 278 AD2d 905, 906 (4th Dept. 2000).
The moving party's failure to meet this burden of proof "requires denial of the motion, regardless of the sufficiency of the opposing papers", for the burden in that event never shifts to the opponent to demonstrate the existence of a material issue of fact. Winegrad v New York University Medical Center, supra, 64 NY2d at 853. The Second Department has repeatedly affirmed that the movant's failure in the first instance to demonstrate entitlement to the drastic relief of summary judgment mandates denial of the motion regardless of the sufficiency of the opposing papers. See, e.g., Miccoli v Kotz, 278 AD2d 460, 461 (2nd Dept. 2000); Karras v County of Westchester, 272 AD2d 377, 378 (2nd Dept. 2000); Fox v Kamal Corporation, 271 AD2d 485 (2nd Dept. 2000); Gstalder v State of New York, 240 AD2d 541, 542 (2nd Dept. 1997); Lamberta v Long Island Railroad, 51 AD2d 730, 730-731 (2nd Dept. 1976); Greenberg v Manlon Realty, Inc., 43 AD2d 968, 969 (2nd Dept. 1974).
In Salas v Town of Lake Luzerne, 265 AD2d 770, 770 (3rd Dept. 1999), the Court held that the attorney's affirmation in support of a motion for summary judgment is insufficient when the attorney has no personal knowledge of the facts. See also, Wright v Rite-Aid of NY, Inc., 249 AD2d 931, 932 (4th Dept. 1998); Hodgson, Russ, Andrews, Woods Goodyear v Roth, 186 AD2d 1001, 1002 (4th Dept. 1992). In brief, the motion must be supported by a an affidavit of a person having knowledge of the facts, together with a copy of the pleadings and other available proof." S.J. Capelin Associates, Inc. v Globe Manufacturing Corp., 34 NY2d 338, 341 (1974). The defendant's failure to do so requires that its motion be denied regardless of any proof submitted by plaintiff.
A landowner's responsibility is to assure that the conditions on his property are reasonably safe. Basso v Miller, 40 NY2d 233, 241 (1976); Comeau v Wray, 241 AD2d 602, 603 (3rd Dept. 1997); White v Gabrielli, 272 AD2d 469, 469 (2nd Dept. 2000); Rovegno v Church of the Assumption, 268 AD2d 576, 576 (2nd Dept. 2000); Kurshals v Connetquot Central School District, 227 AD2d 593, 593 (2nd Dept. 1996). In Comeau, supra, a deliveryman sued the property owners after falling on stairs leading to a root cellar. Landowners are under a duty to maintain their premises in a reasonably safe condition in view of the circumstances, including the likelihood of injury to others. See, Id. at 603. This duty encompasses warning others of the danger, including obvious ones, or take reasonable steps to protect others from the dangers. See, Id. Moreover, where members of the public frequent a location, a landowner owes a "nondelegable duty to provide members of the general public with a reasonably safe premises, including a safe means of ingress and egress.' ( Thomassen v. J K Diner, 152 AD2d 421, 424, 549 N.Y.S.2d 416; see, Richardson v. Schwager Assoc., 249 AD2d 531, 531-532, 672 N.Y.S.2d 114).". Arabian v Benenson, 284 AD2d 422, 422 (2nd Dept. 2001); see, Reynolds v Sead Development Group, 257 AD2d 940, 940 (3rd Dept. 1999); June v Bill Zikakis Chevrolet, Inc., 199 AD2d 907, 909 (3rd Dept. 1993). Where a property owner has a nondelegable duty to keep the premises safe, the duty may not be delegated to agents, employees or independent contractors. See, Backiel v Citibank, N.A., 299 AD2d 504 (2nd Dept. 2002). The property owner is in the best position to assume the risks associated with conditions existing on its property since it is consistent with the general responsibility of owners to maintain their premises in a reasonably safe condition under all circumstances. See Basso, 40 NY2d 233. This obligation owed to the general public encompasses all persons, including workers who come upon the premises. See, Backeil, 299 AD2d at 507. In the instant case, the accident occurred in the entranceway to a McDonald's restaurant through which persons, including patrons such as plaintiff, accessed the building. As such, L-K Bennett owed a non-delegable duty to people such as plaintiff to properly maintain the subject premises.
As the initial proponent of summary judgment, defendant was obligated to demonstrate that it lacked actual or constructive notice of the precipitating condition or that it did not create the condition. See generally, Gordon v American Museum of Natural History, 67 NY2d 836 (1986); Gloria v MGM Emerald Enterprises, Inc., 298 AD2d 355 (2nd Dept., 2002); Van Steenburg v Great Atlantic Pacific Tea Company Inc., supra, 235 AD2d 1001 (3rd Dept. 1997). See, Curzio v Tancredi , 8 AD3d 608 (2nd Dept. 2004); Petrell v Victory Markets, Inc., 283 AD2d 955 (4th Dept. 2001); Atkinson v Golub Corporation Company, 278 AD2d 905, 906 (4th Dept. 2000); Frank v Price Chopper Operating Co., Inc., supra, 275 AD2d 940 (4th Dept. 2000). In Telesco v Bateau, 273 AD2d 894 (4th Dept. 2000), the Court stated:
Even assuming, arguendo, that Red Cross did not have actual or constructive notice of the allegedly dangerous condition, we conclude that Red Cross failed to establish as a matter of law that it did not create that condition [cit.om.] The failure of Red Cross to make a prima facie showing of entitlement to judgment as a matter of law "requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).
Id. See also, Sumell v Wegmans Food Markets, Inc., 254 AD2d 702 (4th Dept. 1998) (motion for summary judgment properly denied: "While defendant met its initial burden of establishing as a matter of law that it had neither actual nor constructive notice of the dangerous condition, defendant failed to establish that it did not create the dangerous condition").
In Septoff v La Shellda Maintenance Corp., 242 AD2d 618 (2nd Dept. 1997), this Court held that there is no requirement of notice where the defendant created the subject condition. Additionally, "[c]ircumstantial evidence is sufficient if it supports the inference of causation or of negligence even though it does not negative the existence of remote possibilities that the injury was not caused by the defendant or that the defendant was not negligent. It is enough that he (plaintiff) shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.' [cit. om.]". Dillon v Rockaway Beach Hospital Dispensary, 284 NY176 (1940).
Plaintiff's own deposition transcript alleges that the floor was wet at the time of the accident, that it looked as it had been recently mopped and that she noticed the floor was wet after she fell. As the initial proponent of summary judgment, L-K Bennett was obligated to prove that it neither created the condition nor possessed actual or constructive notice of the precipitating condition. See generally, Gordon v American Museum of Natural History, 67 NY2d 836 (1986). Defendant L-K Bennett admitted that it had sole maintenance responsibility for the area at issue. L-K Bennett submitted the affidavit of its principal who lacked any personal knowledge of the facts of this case, whether mopping of the area occurred, when it occurred, whether the floor was wet at the time of the accident, and any procedures specifically employed by L-K Bennett's workers prior to the accident. Mr. Bennett was neither present the day of the accident nor did he inspect the premises at the time just prior to subsequent to this accident. L-K Bennett's application is devoid of any admissible evidence from anyone that they did not create a wet condition on the floor, nor that they lacked actual or constructive notice of the condition. As such, L-K Bennett's motion must be denied in its entirety without regard to the sufficiency of UV Sales' of plaintiff's proof in opposition.
L-K Bennett further states that it is entitled to summary judgment due to a superceding intervening cause, i.e. UV Sales' removal of the wet floor sign.
"As a general rule, the question of proximate cause is to be decided by the finder of fact, aided by appropriate instructions." Derdiarian v Felix Contracting Corp., 51 NY2d 308, 311 (1980). The issue is, at what point is a defendant, whose negligent act or omission has contributed to an injury, to be relieved of liability by reason of the fact that after the act or omission a new and independent cause comes into operation. The Derdiarian Court provided an instructive opinion as to the manner of inquiry in which courts should engage in assessing issues of proximate cause and the issue of superceding, intervening cause. Specifically, the Court stated:
Depending upon the nature of the case, a variety of factors may be relevant in assessing legal cause. Given the unique nature of the inquiry in each case, it is for the finder of fact to determine legal cause, once the court has been satisfied that a prima facie case has been established (see, e.g., Nallan v. Helmsley-Spear, Inc., 50 NY2d 507, 520, 521, 429 N.Y.S.2d 606, 407 N.E.2d 451; Sheehan v. City of New York, 40 NY2d 496, 502, 503, 387 N.Y.S.2d 92, 354 N.E.2d 832; Kingsland v. Erie County Agric. Soc., 298 NY 409, 424, 427, 84 N.E.2d 38). To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury (Nallan v. Helmsley-Spear, Inc., supra, 50 NY2d at p. 520, 429 N.Y.S.2d 606, 407 N.E.2d 451; Restatement, Torts 2d, s 431). Plaintiff need not demonstrate, however, that the precise manner in which the accident happened, or the extent of injuries, was foreseeable (Restatement, Torts 2d, s 435, subd. 2).
Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence (see Parvi v. City of Kingston, 41 NY2d 553, 560, 394 N.Y.S.2d 161, 362 N.E.2d 960; Restatement, Torts 2d, ss 443, 449; Prosser, Law of Torts, s 44). If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, it may well be a superseding act which breaks the causal nexus (see, e. g., Martinez v. Lazaroff, 48 NY2d 819, 820, 424 N.Y.S.2d 126, 399 N.E.2d 1148; Ventricelli v. Kinney System Rent A Car, 45 NY2d 950, 952, 411 N.Y.S.2d 555, 383 N.E.2d 1149, supra; Rivera v. City of New York, 11 NY2d 856, 227 N.Y.S.2d 676, 182 N.E.2d 284). Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve.
There are certain instances, to be sure, where only one conclusion may be drawn from the established facts and where the question of legal cause may be decided as a matter of law. Those cases generally involve independent intervening acts which operate upon but do not flow from the original negligence. Thus, for instance, we have held that where an automobile lessor negligently supplies a car with a defective trunk lid, it is not liable to the lessee who, while stopped to repair the trunk, was injured by the negligent driving of a third party (Ventricelli v. Kinney System Rent A Car, supra). Although the renter's negligence undoubtedly served to place the injured party at the site of the accident, the intervening act was divorced from and not the foreseeable risk associated with the original negligence. And the injuries were different in kind than those which would have normally been expected from a defective trunk. In short, the negligence of the renter merely furnished the occasion for an unrelated act to cause injuries not ordinarily anticipated (see, also, Martinez v. Lazaroff, supra).
By contrast, in the present case, we cannot say as a matter of law that defendant Dickens' negligence was a superseding cause which interrupted the link between Felix' negligence and plaintiff's injuries. From the evidence in the record, the jury could have found that Felix negligently failed to safeguard the excavation site. A prime hazard associated with such dereliction is the possibility that a driver will negligently enter the work site and cause injury to a worker. That the driver was negligent, or even reckless, does not insulate Felix from liability (see Lopes v. Adams, 30 NY2d 499, 329 N.Y.S.2d 817, 280 N.E.2d 648, affg. 37 AD2d 610, 323 N.Y.S.2d 605; Restatement, Torts 2d s 449). Nor is it decisive that the driver lost control of the vehicle through a negligent failure to take medication, rather than a driving mistake (see, e. g., Lopes v. Adams, supra). The precise manner of the event need not be anticipated. The finder of fact could have concluded that the foreseeable, normal and natural result of the risk created by Felix was the injury of a worker by a car entering the improperly protected work area. An intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent.
In a similar vein, plaintiff's act of placing the kettle on the west side of the excavation does not, as a matter of law, absolve defendant Felix of responsibility. Serious injury, or even death, was a foreseeable consequence of a vehicle crashing through the work area. The injury could have occurred in numerous ways, ranging from a worker being directly struck by the car to the car hitting an object that injures the worker. Placement of the kettle, or any object in the work area, could affect how the accident occurs and the extent of injuries. That defendant could not anticipate the precise manner of the accident or the exact extent of injuries, however, does not preclude liability as a matter of law where the general risk and character of injuries are foreseeable.
Derdiarian, 51 NY2d at 314-317.
In sum, if the new cause is set in operation by defendant's original wrongful conduct and is not independent of it, defendant is not relieved of responsibility. See, Jackson v New York City Housing Authority, 214 AD2d 605 (2nd Dept. 1995). The inquiry must always be whether the injury was produced by a self-operating, intermediary cause which was disconnected from the primary fault. See, Milwaukee S. P. R. Co. v Kellogg, 94 US 469 (1876).
Additionally, although the intervening act may be independent, a defendant will not be relieved of liability if the intervening act is one that naturally flows from the original, wrongful act or could reasonably have been foreseen. See, Gordon v Eastern Railway. Supply, 82 NY2d 555 (1993) (plaintiff's injuries were a foreseeable result of defendant's failure to provide plaintiff with a safe scaffold or ladder while he sandblasted railroad cars, and such failure was a substantial factor leading to plaintiff's fall and the injuries he sustained; that injuries were occasioned by an allegedly defective sandblaster used in the process is not of such an "extraordinary nature" to constitute an intervening cause thus relieving defendant of responsibility for the injury under Labor Law section 240); Milks v McIver, 264 NY 267 (1934) (defendant causing physical injury responsible for aggravation of the injury by negligent physician); Comeau v Wray, 241 AD2d 602 (3rd Dept. 1997) (plaintiff's use of defective stairs was not an intervening act of negligence because it was foreseeable that plaintiff would be using stairs while delivering supplies); see, Hill v St. Clare's Hospital, 67 NY2d 72 (1986); Cartee v Saks Fifth Ave., 277 AD 606 (1st Dept. 1951), aff'd 303 NY 832 (1952) (reasonable foresight, not prophetic vision, is the measure of responsibility); Bolte v New York, 22 NY2d 817 (1968); Morang v Burnett, 216 AD2d 835 (3rd Dept. 1995) (possessor of fireworks and owner of premises where fireworks display occurred not relieved of liability for failure to properly supervise hazardous event by claim that another adult intentionally fired a fireworks missile towards the infant plaintiff); Betancourt v Manhattan Ford Lincoln Mercury, 195 AD2d 246 (1st Dept. 1994) (issue of fact as to whether accident, in which automobile renter was struck by passing vehicle after being forced to pull car onto shoulder of highway due to engine problems, was reasonably foreseeable consequence of rental company's negligence in placing defective automobile into stream of commerce); Rotz v New York, 143 AD2d 301 (1st Dept. 1988) (injury caused by stampeding audience at open air concert); Foley v State, 265 AD 682 (4th Dept. 1943) (where state failed to replace a burned-out bulb in a traffic light, it was reasonably foreseeable that an accident would occur at the intersection; acts of the drivers of the cars not necessarily a superseding cause). Therefore, when the intervening, intentional act of another is itself a foreseeable harm that shapes the duty imposed, a defendant failing to guard against such conduct will not be relieved of liability when the act occurs, See, Bell v Board of Educ. of the City of New York, 90 NY2d 944 (1997); Kush by Marszalek v Buffalo, 59 NY2d 26 (1983).
In Bell, plaintiff was raped after her class left a field trip at a park without her and she began to walk home alone. The Court held that the criminal act was not an unforeseeable superseding event absolving the defendant school board from liability as a matter of law, since a rational jury hearing the trial testimony could have determined that the foreseeable result of the danger created by defendant's alleged lack of supervision was the type of injury that had occurred. See, Bell, supra.
These holdings are true under when the intervening act is a deliberate but innocent one, See, Wagner v International Railroad Co., 232 NY 176 (1921) (the wrongdoer is responsible to one who attempts a rescue); McMorrow v Trimper, 149 AD2d 971 (4th Dept. 1989, aff'd 74 NY2d 830 (1989) (plaintiff, passenger got out of vehicle after accident and jumped over guardrail to avoid approaching vehicle); McDonald v Central School Dist., 179 Misc 333 (Sup. Ct. NY Co. 1941), aff'd 264 App Div 943, 36 NYS2d 438 (4th Dept. 1942), aff'd 289 NY 800 (1943) (a student was injured by a car passing a stopped school bus; the school, which had assumed the duty of providing safe conduct of students across the highway, was held liable); Quiquin v Fitzgerald, 146 AD2d 894, 536 NYS2d 874 (3rd Dept. 1989) (it was a jury question as to whether negligence of driver of taxi in proceeding onto highway despite an obstructed view was such "an extraordinary, unforeseeable act as to break the causal chain" to the negligence of bus driver in stopping bus in such a position as to obstruct the view of the other driver); Muhaymin v Negron, 86 AD2d 836 (1st Dept. 1982) (defendant knew of dangerous condition in apartment occupied by plaintiff and other young children); Masone v Gianotti, 54 AD2d 269 (2nd Dept. 1976) (defendant knew that child played with air rifle, held liable for failing to put rifle out of reach); Sherman v Concourse Realty Corp., 47 AD2d 134 (2nd Dept. 1975) (tenant assaulted and robbed by intruder, landlord, who had notice of other crimes and failed to repair lobby door locks, may be liable).
In this case, L-K Bennett adduced no evidence whatsoever concerning maintenance protocol for the subject premises. All the defendant did was state in an attorney's affirmation and via defendant's principal who had no knowledge of the maintenance protocols actually employed by his employees on that day, that it had no notice of the defective condition, such a statement being wholly insufficient. See, Salas, 265 AD2d at 770; Wright, 249 AD2d at 932; Hodgson, Russ, 186 AD2d at 1002. This glaring deficiency in the defendant's proof precludes a finding that the defendant lacked constructive notice as a matter of law. See, Mancini v Quality Markets, Inc., 256 AD2d 1177 (4th Dept. 1998); Edwards v Wal-Mart Stores Inc., 243 AD2d 803 (3rd Dept. 1997); Van Steenburg v Great Atlantic Pacific Tea Company Inc., 235 AD2d 1001 (3rd Dept. 1997). In all of these cases, the defendant proffered its employees' testimony on this score and still failed to meet its initial burden of proof on the motion for summary judgment.
In Mancini, supra, the Court wrote:
Although plaintiff will bear the burden at trial of proving that defendant had actual or constructive notice of the dangerous condition, on a motion for summary judgment defendant bears the burden of establishing lack of notice as a matter of law [cit.om.]. The affidavit of the store manager and the deposition testimony of the front end manager are not sufficient to sustain defendant's burden. Neither was able to state when the area had last been inspected, or which employee was responsible for inspection or clean up in the produce area. Plaintiff's accident occurred after 9:30 p.m., and both witnesses indicated that the produce manager, who is responsible for the produce area, left at 5:00 p.m. at the latest. Although both witnesses indicated that the store had a policy of inspection of the entire store every hour, no documentation was provided to establish that the policy was followed on the day of plaintiff's accident, nor could either witness recall having performed such inspections. Consequently, defendant failed to establish that the grapes had not been on the floor for a sufficient length of time to permit an employee to discover and remedy the condition.
Id., 256 AD2d at 1177-78.
In Edwards, supra, where the plaintiff fell in a puddle of dirty water at around 8:30 p.m., the Court wrote:
In support of the motion [for summary judgment], defendant submitted the examination before trial of its comanager who testified that, although there was no set schedule, the "general practice" of the store was to inspect the area around the restrooms every half hour to an hour. However, in response to plaintiff's interrogatories, defendant admitted that it was unknown "what maintenance, inspection or cleaning was done in the area of the ladies' room" on the day of plaintiff's accident. The only pertinent evidence on this point was the testimony from a courtesy desk employee who stated that the last time she inspected the area that day was prior to 7:00 p.m., at which time she did not notice water on the floor.
In our view, this evidence was insufficient to meet defendant's burden of showing that it did not have constructive notice of the dangerous condition [cit.om.].
Id., 243 AD2d at 803.
Finally, in Van Steenburg, supra, the Court wrote:
[T]he store manager testified that there was no janitorial staff for the store; instead, all department heads and employees were instructed to clean during their idle time. Additionally, the store manager could not recall if a specific sweeping or mapping schedule was in place at the time of plaintiff's fall, nor was he able to state when the floor in the produce area was last cleaned prior to plaintiff's accident. Such proof falls far short of satisfying defendant's burden on its motion for summary judgment (compare, McClarren v. Price Chopper Supermarkets, 226 AD2d 982 . . . [proof establishing that the aisle where the plaintiff fell was inspected 3 to 5 minutes prior to the accident and found to be clean and dry]; Maiorano v. Price Chopper Operating Co., 221 AD2d 698, 699 . . . [record demonstrated that the area in which the plaintiff fell had been swept 5 to 10 minutes prior to accident]). Thus, . . . the sufficiency of plaintiff's proof in opposition need not detain us, as defendant failed to meet its evidentiary burden in the first instance . . .
Id., 235 AD2d at 1001.
In this case, L-K Bennett's glaring absence of evidence demonstrating a lack of constructive notice further necessitates denial of its motion.
UV Sales' motion for summary judgment essentially contends that it owed no duty to plaintiff since it was L-K Bennett's sole responsibility to maintain the area in question. While L-K Bennett admitted this fact, what is also true is that UV Sales' employee removed the wet floor sign.
While it may be true that one initially has not duty to another, once a duty is assumed, it is incumbent upon the actor not to create a hazardous condition or exacerbate and already hazardous condition. See, Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 522-523 (1980); H.R. Moch Co. v Rensselaer Water Co., 247 NY 160,168 (1928); Gordon v Muchnick, 180 AD2d 715 (2nd Dept. 1992); Figueroa v Lazarous Burman Associates, 269 AD2d 215, 217 (1st Dept. 2000); Genen v Metro-North Commuter Railroad, 261 AD 211, 212 (1st Dept. 1999); Varga v Parker, 136 AD2d 932, 933 (4th Dept. 1988).
In Genen, supra, the issue was whether the plaintiff was able to maintain a cause of action in negligence directly against the snow removal contractor, despite the fact that the snow removal contractor assumed no independent duty of care to the plaintiff solely by its contract to remove snow with Metro-North. The plaintiff demonstrated that the snow removal contractor performed snow removal operations the day before plaintiff slipped, and that the area where plaintiff slipped had not been sanded and was covered with ice patches. This evidence supported plaintiff's claim in his bill of particulars that a dangerous condition was created by incomplete ice and snow removal. The Court held that by undertaking to remove snow and ice, the snow removal contractor was "obligated to exercise reasonable care in doing so, or be held liable in negligence where its acts created or increased the snow-related hazard [citation omitted]." Id. The Court further stated that "When a contractor is alleged to have negligently created or increased a dangerous condition by its own affirmative acts, such conduct unquestionably constitutes misfeasance rather than nonfeasance, and the scope of the defendant's duty should be determined under traditional negligence principles, without regard to any breach of contract theory." Id. at 213, 690 N.Y.S.2d at 216. Having determined that the claim against the snow removal contractor arose from the contractor's affirmative acts of improper plowing and leaving icy patches, the Court held that the contractor's ". . . duty to exercise reasonable care in relation to the plaintiff arose not out of a contract, but rather by its own affirmative acts that created a risk of injury to members of the public . . ." Id. at 214, 690 N.Y.S.2d at 216.
In the instant case, while UV Sales may have not initially had any maintenance responsibilities for the area at issue, the uncontroverted testimony is that a UV Sales employee removed the wet floor sign placed by an L-K Bennett employee. For UV Sales to now claim that it has no duty when arguably it assumed one by removing the wet floor sign and thereby potentially depriving the plaintiff of the wet floor warning warrants denial of its motion on the basis of an absence of a duty to plaintiff.
According to L-K Bennett's owner's affidavit, the vestibule where plaintiffs fell "would typically not be mopped during the day unless there was a spill or problem. When an area such as a vestibule was mopped, warning signs would be placed alerting customers to the fact that the floor was wet. Wet floor signs would be placed in the area where the floor was wet." (Emphasis in original).
Viewing the evidence in a light most favorable to plaintiff, giving her the benefit of every reasonable inference, as this Court is required to do, see Gordon v The American Museum of Natural History, 113 AD2d 701 (1st Dept. 1985), it cannot be said as matter of law that the evidence of the wet floor warning sign is inadequate to permit a jury to infer that defendants knew of the presence of a dangerous floor condition at the vestibule at the time plaintiff was injured. Indeed, such evidence goes even further so as to permit the reasonable inference that a dangerous floor condition had been addressed, which raises the issue of whether the cleaning had been adequately performed. Plaintiff testified that the floor was wet. UV Sales' employee claimed the area was dry which is why he claims to have removed the sign. An issue of fact is therefore created whether the condition was indeed hazardous at the time of plaintiff's accident, and whether UV Sales contributed thereto by removing the very warning for said condition. What, if any, apportionment of responsibility must be left to the trier of fact. As such, UV Sales' motion is denied as well.
The foregoing constitutes the decision and order of the court.