Opinion
No. 1827/08.
2009-06-1
Anthony SCHIANO, Plaintiff, v. MIJUL, INC., McDonalds and McDonalds Corporation, Defendants.
ORIN R. KITZES, J.
The following papers numbered 1 to 11 read on this motion by defendants for an order granting defendants summary judgment in their favor and dismissing the complaint pursuant to CPLR §§ 3211 and 3212.
PAPERS
NUMBERED
+------------------------------------------+ ¦Notice of Motion–Affirmation–Exhibits¦1–4 ¦ +-------------------------------------+----¦ ¦Memorandum of Law ¦5 ¦ +-------------------------------------+----¦ ¦Affirmation in Opposition–Exhibits ¦6–8 ¦ +-------------------------------------+----¦ ¦Reply Affirmation–Exhibits ¦9–11¦ +------------------------------------------+
Upon the foregoing papers it is ordered that the motion by defendants for an order granting defendants summary judgment in their favor and dismissing the complaint pursuant to CPLR §§ 3211 and 3212 is denied for the following reasons:
According to the complaint, this action stems from plaintiff slipping and falling while walking in the parking lot of defendants premises located at 51–35 Northern Boulevard, Woodside, NY, on September 23, 2006. He claims that he fell “due to the presence of a defective matter in maintaining the path.” He also claims defendants were reckless, careless and negligent in failing to properly fix, repair and maintain the area he walked upon; and their failure to maintain the area was a breach of their duty of reasonable owning, operating, and maintaining the area. As a result of his fall, plaintiff claims to have suffered injuries and brought this action to recover damages.
Defendants have now moved for dismissal of the complaint pursuant to CPLR 3211 and 3212. The branch of the motion seeking dismissal pursuant to CPLR 3211 is denied. As mentioned above, the complaint sets forth allegations that the plaintiff sustained injuries when he was walking on defendants' premises as a result of a slip and fall on a defective condition that was present due to defendants' failure to properly maintain the area. Plaintiff has not specifically opposed this branch of the motion.
7F'It is well-settled that on a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the pleading is to be liberally construed, accepting all the facts alleged in the complaint to be true and according the plaintiff the benefit of every possible favorable inference. (Jacobs v. Macy's East, Inc., 262 A.D.2d 607, 608;Leon v. Martinez, 84 N.Y.2d 83.) The court does not determine the merits of a cause of action on a CPLR 3211(a)(7) motion ( see, Stukuls v. State of New York, 42 N.Y.2d 272;Jacobs v. Macy's East Inc., supra ), and the court will not examine affidavits submitted on a CPLR 3211(a)(7) motion for the purpose of determining whether there is evidentiary support for the pleading. ( See, Rovello v. Orofino Realty Co., Inc., 40 N.Y.2d 633.) The plaintiff may submit affidavits and evidentiary material on a CPLR 3211(a)(7) motion for the limited purpose of correcting defects in the complaint. ( See, Rovello v. Orofino Realty Co., Inc., supra; Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159.) In determining a motion brought pursuant to CPLR 3211(a)(7), the court “must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts alleged fit within any cognizable legal theory.” ( 1455 Washington Ave. Assocs. v. Rose & Kiernan, supra, 770–771; Esposito–Hilder v. SFX Broadcasting Inc., 236 A.D.2d 186.) Contrary to defendants' claims the complaint and the evidence submitted sufficiently set forth allegations concerning defendants failure to properly maintain the premises and that they had actual and/or constructive knowledge of the condition. Accordingly, the motion pursuant to CPLR 3211(a)(7) is denied.
The branch of the motion seeking dismissal of the complaint pursuant to CPLR 3212 is denied. Defendants seek summary judgment on the grounds, that they did not create the condition which caused plaintiff's accident and did not have actual or constructive notice of the alleged condition which plaintiff claims caused his accident. Defendants rely upon the deposition testimony of plaintiff which indicates that he did not notice any liquid or grease in the “drive-thru” area in the parking lot when he was entering the restaurant. He slipped after leaving the restaurant, in an area that he had passed to enter. They also point out that plaintiff did not know what color the liquid was and he did not know how long this liquid was present. Defendants have also submitted the deposition testimony of Salvador Carreto, the manager of the subject McDonalds for fourteen years. He stated that he did not see anyone fall on September 23, 2006 and that one of plaintiff's friends came into the store and provided the information. Mr. Carreto stated it had been raining that day and Mr. Alva was in charge of maintaining the areas outside the restaurant, including the “drive-thru” area. Mr. Carreto stated that Alva cleans the exterior at about 6:00 a.m. and degreases with a brush and degreaser, and according to Carreto, Alva cleaned the area on the day of plaintiff's incident, even though it was raining. Finally, Carreto stated he went outside after the incident but saw nothing.
Plaintiff has opposed this motion by, inter alia, referring to portions of his and Carreto's deposition testimony and the affidavit of Roy Tapia, a co-worker of plaintiff. Plaintiff points to his deposition testimony that indicates he knew he slipped on grease or oil after he had fallen. Plaintiff also points out that Mr. Carreto stated that there were no records indicating what cleaning procedures Mr. Alva had performed on September 23, 2006. A review of Carreto's deposition testimony indicates he was told by the morning manager, Jose Galan, that Alva had done his regular cleaning on September 23, 2006. Roy Tapia's affidavit indicates he waited outside in his truck when plaintiff and other workers went into the restaurant. While waiting, he saw a patch of grease on the driveway at the restaurant and thereafter, Tapia saw plaintiff in the grease after he had fallen.
It is axiomatic that the Summary Judgment remedy is drastic and harsh and should be used sparingly. The motion is granted only when a party establishes, on papers alone, that there are no material issues and the facts presented require judgment in its favor. It must also be clear that the other side's papers do not suggest any issue exists. Moreover, on this motion, the court's duty is not to resolve issues of fact or determine matters of credibility but merely to determine whether such issues exist. See, Barr v. County of Albany, 50 N.Y.2d 247 (1980); Miceli v. Purex, 84 A.D.2d 562 (2d Dept.1981); Bronson v. March, 127 A.D.2d 810 (2d Dept.1987 .) Finally, as stated by the court in Daliendo v. Johnson, 147 A.D.2d 312,317 (2d Dept.1989), “Where the court entertains any doubt as to whether a triable issue of fact exists, summary judgment should be denied.”
Initially, this court finds that defendants have not made a prima facie showing of entitlement to judgment as a matter of law and their motion is denied. Defendants have failed to establish they lacked constructive notice of the condition since they have not submitted competent admissible evidence that the procedures concerning the cleaning of the subject area were performed. See Zuckerman v. City of New York, 49 N.Y.2d 557 (1980.) Defendants evidence regarding their lack of constructive notice consists of Mr. Carreto's hearsay statements of others concerning the cleaning and inspection of the subject areas. This evidence cannot support the motion since there is no direct evidence of this work being done. Kramer v. Oil Servs., Inc., 56 AD3d 730 (2d Dep't 2008); AIU Ins. Co. v. Am. Motorists Ins. Co., 8 AD3d 83 (1st Dep't 2004.) As such, defendants have not submitted sufficient evidence to establish when the area at issue was last inspected. Rivera v. YMCA of Greater N.Y, 37 AD3d 579 (2d Dept 2007.) Accordingly, the motion is denied for defendants lack of establishing a prima facie entitlement to summary judgment. Yioves v. T.J. Maxx, Inc., 29 Ad3d 572 (2d Dept 2006.)Rivera v. YMCA of Greater N.Y, 37 AD3d 579 (2d Dept 2007.)
Furthermore, the motion is denied since plaintiff has demonstrated that there are triable issues of fact as to whether the defendants created the condition, or had actual or constructive knowledge of the condition, which caused plaintiff to fall and that defendants had a reasonable time to correct the condition. See, Disalvia v. Pilevsky, 266 A.D.2d 425 (2d Dept.1999.) Plaintiff claims that defendants had constructive notice of the dangerous condition. “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”. Masotti v. Waldbaums Supermarket 227 A.D.2d 532 (2d Dept.1996). Plaintiff's evidence, consisting of his deposition testimony, Mr. Carreto's testimony and Tapia's affidavit indicate that the liquid was observed in the subject area prior to the accident and defendants were aware of the grease accumulation in he area plaintiff slipped. This is sufficient to raise an issue of fact as to whether defendants had constructive notice of the condition and thereupon failed to take reasonable actions to remedy the condition. Bonilla v. Western Beef, 272 A.D.2d 487 (2d Dept.2000.) Accordingly, plaintiff has met his burden and defendants' motion for summary judgment is denied for this reason as well.
In summary, defendants' motion for dismissal of the complaint pursuant to CPLR §§ 3211 and 3212 are denied.