Opinion
11989/15
03-13-2019
Barbara SCLAFANI, Plaintiff, v. JOPAL REALTY, LLC and Mills Pond Nursing and Rehabilitation Center, Defendants.
Cellino & Barnes, P.C., 600 Old Country Road, Garden City, New York 11530, For Plaintiff Wilson, Elser, Moskowitz, LLP, 150 East 42nd Street, New York, NY 10017, For Defendants
Cellino & Barnes, P.C., 600 Old Country Road, Garden City, New York 11530, For Plaintiff
Wilson, Elser, Moskowitz, LLP, 150 East 42nd Street, New York, NY 10017, For Defendants
Carmen Victoria St. George, J.
The following papers were read upon this motion:
Notice of Motion/Order to Show Cause X
Answering Papers X
Reply X
Briefs: Plaintiff's/Petitioner's
Defendant's/Respondent's
Plaintiff commenced this action to recover damages for personal injuries she sustained when she fell on defendants' premises. Jopal Realty owns the property where the accident occurred, and Mills Pond is the nursing facility that plaintiff was visiting at the time of her accident. Plaintiff was visiting her husband, who was a resident at Mills Pond, on November 18, 2014, at approximately 2:00 p.m. As she left the building to walk to her car, she fell on an outdoor walkway and fractured her right shoulder and left ankle.
Defendants bring this summary judgment motion seeking dismissal of the summons and complaint in its entirety, with prejudice. Plaintiff opposes the motion.
Plaintiff alleges in her complaint that defendants caused and created, and had actual and constructive notice of, a dangerous condition on or at the subject walkway. Plaintiff specifically alleges that the walkway was uneven, unrepaired, and in a condition that allowed rain to accumulate, thereby causing a slipping hazard, that defendants failed to provide an alternate path of travel and a safe means of ingress and egress, and that defendants failed to warn of the dangerous condition.
According to defendants, they are entitled to summary judgment because plaintiff cannot identify the cause of her fall, and the walkway was free of defects on the date of the occurrence. In support of their motion, defendants submit the pleadings, the plaintiff's deposition testimony, Mills Pond's deposition testimony, an accident report, a photograph, and the affidavit of defendants' engineer.
It is well recognized that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact ( Andre v. Pomeroy, 35 NY2d 361 [1974] ). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact ( Cauthers v. Brite Ideas, LLC, 41 AD3d 755 [2d Dept 2007] ). The Court's analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the plaintiff ( Makaj v. Metropolitan Transportation Authority , 18 AD3d 625 [2d Dept 2005] ). "The Supreme Court's function on a motion for summary judgment is issue finding, not issue determination" ( Trio Asbestos Removal Corp. v. Gabriel & Sciacca Certified Public Accountants, LLP , 164 AD3d 864, 865 [2d Dept 2018] ).
A property owner is charged with the duty to maintain the premises in a reasonably safe condition ( Katz v. Westchester County Healthcare Corp. , 82 AD3d 712, 713 [2d Dept 2011] ). Of course, a property owner may be held liable for damages resulting from a hazardous condition on its premises if it created the hazardous condition or had either actual or constructive notice of the condition in sufficient time to remedy it ( Gordon v. American Museum of Natural History , 67 NY2d 836, 837 [1986] ). To constitute constructive notice, the defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit defendant to discover and remedy it ( Borenkoff v. Old Navy , 37 AD3d 749, 750 [2d Dept 2007] ).
To be entitled to summary judgment in a trip and fall case, a defendant is required to show, prima facie , that he or she maintained the premises in a reasonably safe condition and that he or she did not have notice of, or create, a dangerous condition that posed a foreseeable risk of injury to persons expected to be on the premises ( Villano v. Strathmore Terrace Homeowners Assn., Inc. , 76 AD3d 1061 [2d Dept 2010] ). Specifically with respect to constructive notice, a defendant must tender some evidence establishing when the area in question was last cleaned or inspected prior to the plaintiff's fall ( Zambri v. Madison Square Garden , 73 AD3d 1035, [2d Dept 2010] ; Birnbaum v. New York Racing Association, Inc. , 57 AD3d 598 [2d Dept 2008] ). Reference to general cleaning or inspection practices is insufficient to establish a lack of constructive notice in the absence of evidence concerning specific cleaning or inspection of the area in question ( Rong Wen Wu v. Arniotes , 149 AD3d 786, 787 [2d Dept 2017] ).
A property owner has no duty, however, to protect or warn against an open and obvious condition that is not inherently dangerous as a matter of law ( Neiderbach v. 7-Eleven, Inc. , 56 AD3d 632, 633 [2d Dept 2008] ; ( Gagliardi v. Walmart Stores, Inc. , 52 AD3d 777 (2d Dept 2008) ; Sclafani v. Washington Mutual, 36 AD3d 682 [2d Dept 2007] ). "While the issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question, a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion, and may do so on the basis of clear and undisputed evidence [internal citations omitted]" ( Tagle v. Jakob , 87 NY2d 165, 169 [2001] ). Summary dismissal is appropriate where the complained of condition was both open and obvious and, as a matter of law, was not inherently dangerous. ( Rao-Boyle v. Alperstein , 44 AD3d 1022 [2d Dept 2007] ).
Whether a condition is open and obvious cannot, however, be divorced from the surrounding circumstances. A condition that is ordinarily apparent to a person making reasonable use of his senses may be rendered a trap for the unwary where the condition is obscured, or the plaintiff is distracted ( Stoppeli v. Yacenda , 78 AD3d 815, 816 [2d Dept 2010] ).
The undisputed evidence establishes that plaintiff knows what caused her to fall. She testified that she turned her ankle on the edge of the walkway that was obscured by overgrown grass, causing her to fall to the ground. According to her testimony, she intended to walk in the grassy area abutting the walkway because there were some small branches in the middle of the walkway. She could not see where the edge of the walkway was located because grass had grown over the edge. Plaintiff stated that she "couldn't see the edge cause the grass was over it." She stepped on the edge of walkway with her left foot; her ankle twisted, and she fell down, causing her shoulder to hit the cement.
Plaintiff estimated that the grass laying over the walkway was approximately one-and-one-half (1 ½) to two (2) inches long. Plaintiff had been visiting her husband at defendants' facility since September 2014 and she testified that she saw the grass cut only once since September. She had noted to herself that the grass was long and overhanging the sidewalk prior to November 18, 2014, but she did not make any complaints to anyone. Plaintiff was not aware of anyone who had previously fallen in that same area. Also prior to November 18, 2014, plaintiff had traversed the subject walkway without incident; nevertheless, the walkway where she had she had her accident was, according to her testimony, "always overgrown or it was muddy from the rain." She also testified that on rainy days the subject walkway was "a mess and there's almost always debris on the walkway." She explained that the debris consisted mostly of tree branches.
Plaintiff acknowledged that there were no puddles on the subject walkway where she had her accident on November 18, 2014 although it had rained the night before. The walkway was not wet; however, the abutting grass was a "little damp."
Defendant Mills Pond's former administrator, Andrew Yandoli, testified that he was present at the facility on the date of plaintiff's accident, but that he did not witness her fall. Mills Pond did not perform its own landscaping. A landscaping company came weekly to cut the grass, depending upon the season, and the same company also performed fall clean-ups. Mr. Yandoli was not certain when the fall clean-up was performed in 2014, and he did not offer any testimony as to when the grass was last cut prior to November 18, 2014.
Included as part of the services performed by the landscaping company was the edging of the grass abutting the cement walkways on the property. According to Mr. Yandoli, the facility's maintenance supervisor, Mr. Pearson, would visually inspect the property after each landscape service. Defendants do not, however, submit any sworn statement from Mr. Pearson as to the length and condition of the grass abutting the subject walkway on the date of plaintiff's accident, the date that Mr. Pearson last inspected the subject area, or the date of the last landscape service. Mr. Yandoli stated only that Mr. Pearson never expressed any dissatisfaction to him concerning the landscaping and clean-up services provided.
Mr. Yandoli responded to the location of plaintiff's accident very shortly after plaintiff fell. Plaintiff was still on the ground, partially on the grass and partially on the cement walkway. Mr. Yandoli stated that he did not see any debris or twigs on the walkway where plaintiff was laying on her side, in contravention of plaintiff's testimony, nor did he see anything out of the ordinary with respect to the walkway when he used it earlier that morning on his way into the building. He was also unaware of anyone else falling on the walkways prior to plaintiff's accident, and he was not aware of any prior complaints of debris on the walkways.
Mr. Yandoli also did not offer any testimony specifically as to his observations of the length or condition of the grass abutting the walkway where plaintiff fell, although he was present at the scene immediately thereafter. The submitted photograph of the subject walkway was not taken on the date of plaintiff's accident, but in 2015. In fact, Mr. Yandoli testified that there was no policy or procedure for a follow-up investigation after the occurrence of an incident, prior to any legal action being commenced; accordingly, there was no post-accident investigation undertaken in this matter until after the complaint was filed and served in 2015.
Defendants' expert engineer inspected the subject walkway on May 4, 2018, more than three years after plaintiff's accident. There is no evidence establishing whether the walkway was in the same condition on May 4, 2018 as it was on November 18, 2014. Even if the walkway was in the same condition, and in conformity with the applicable New York State Code sections and ASTM standards, the engineer's affidavit does not address the cause of plaintiff's fall, as testified to by the plaintiff, which was the walkway's edge obscured by overgrown grass.
While defendants have established that they did not have actual notice of the grass obscuring the edge of the walkway, by failing to provide any evidence as to when the landscaping services were last performed and/or inspected, defendants have not established that they did not create the condition of the overgrown grass, or that they did not have constructive notice of its existence. Overgrown grass does not present a sudden and unexpected circumstance that defendants may not have had sufficient time to remedy.
Defendants have not sustained their prima facie entitlement to summary judgment as a matter of law; therefore, it is unnecessary to determine whether the plaintiff's papers submitted in opposition are sufficient to raise a triable issue of fact (see Levin v. Khan , 73 AD3d 991 [2d Dept 2010] ; Kjono v. Fenning , 69 AD3d 581[2d Dept 2010] ). Accordingly, it is hereby
ORDERED that the defendants' summary judgment motion is denied.
The foregoing constitutes the Order of this Court.