Opinion
Index No. 602020-2019 Motion Seq. 1 & 2Motion Nos. 001 MG 002 MG
04-15-2021
MAUREEN THOMPSON, Plaintiff, v. EMMA S. CLARK MEMORIAL LIBRARY ASSOCIATION, EMMA S. CLARK MEMORIAL LIBRARY AND THREE VILLAGE SCHOOL DISTRICT, Defendants.
Rosenberg & Gluck, L.L.P. Attorneys for Plaintiff Barbiero, Bisch & O'Connor, LLP Attorneys for Defendants Emma S. Clark Memorial Library Assoc. & Emma S. Clark Memorial Library
Unpublished Opinion
Motion Date: 09/12/19
Submitted: 06/17/20
Rosenberg & Gluck, L.L.P. Attorneys for Plaintiff
Barbiero, Bisch & O'Connor, LLP Attorneys for Defendants Emma S. Clark Memorial Library Assoc. & Emma S. Clark Memorial Library
PRESENT: HON. DAVID T. REILLY, JSC
DAVID T. REILLY, JUDGE
Upon the reading and filing of the following papers in this matter: (1) Defendants Notice of Motion (001) dated July 30, 2019 and supporting papers; (2) Plaintiff's Notice of "Cross Motion" (002) dated March 18, 2020 and supporting papers and Affirmation in Opposition; (3) Defendants Affirmation in Opposition and in Reply dated May 12, 2020 and supporting papers; (4) Plaintiff's Affirmation in Reply dated May 15, 2020 and supporting papers (NOT CONSIDERED); and (5) Defendants Sur-Reply dated May 18, 2020 (NOT CONSIDERED) (and after hearing counsel in support and in opposition to the motion) it is, ORDERED that the motion (Mot. Seq. No. 001) by defendants Emma S. Clark Memorial Library Association and Emma S. Clark Memorial Library seeking summary judgment dismissing the claims against them is granted; and it is further
ORDERED that plaintiff's cross-motion (Mot. Seq. No. 002) seeking leave to amend its complaint to add a party is granted, that a copy of the amended pleadings shall be filed separately as pleadings in NYSCEF, and that service of the amended pleadings shall be accompanied by a copy of the within Order with notice of entry; and it is further
ORDERED that, upon receipt of a copy of the within Order with CPLR 8019© notice, the Suffolk County Clerk is directed to amend the caption of this action to read as set forth below.
The within action seeks to recover damages for personal injuries allegedly sustained on June 26, 2018 at approximately 3:00 p.m. as a result of a trip and fall on a buckled floor mat runner in the entrance to defendant Library (defendants Emma S. Clark Memorial Library Association and Emma S. Clark Memorial Library are hereinafter collectively referred to as "Defendant" or "Library"). Both plaintiff and defendant attribute the cause of such buckled condition to the actions of a "programmer" who was pushing a cart loaded with rocks into the library for a "kindness rock" painting program for teenagers (although plaintiff also alleges other possible contributing factors). Issue has been joined and defendant now moves for summary judgment based upon the assertion that it did not create the condition, nor did it have notice of it. Plaintiff cross-moves to add the programmer, Janette Stevens, as a party. Claims against defendant Three Village Central School District were discontinued by stipulation dated May 31, 2019.
As an initial matter, the Court notes that defendant has submitted a sur-reply. Defendant's counsel submits that plaintiff's "Reply" to the cross-motion is in fact an impermissible second affirmation in opposition which should be disregarded or, if considered, then sur-reply should be permitted. As plaintiff's reply is devoid of any argument with regard to further support of its cross-motion and only contains new argument in opposition to defendant's motion, plaintiff's reply and defendant's sur-reply will not be considered.
In support of its motion, defendant argues that it did not create the buckled condition of the floor mat and had no notice of same. Plaintiff's employee who was behind the circulation desk near the door at the time of the incident, Virginia Davis-Keefer, states in her affidavit that she never saw the mat buckled prior to the accident and no one had informed her that it was buckled. Another of defendants' employees, who was behind the circulation desk at the time of the incident, Linda Dolan, attested that she also had not seen the floor mat buckled prior to the accident and had not been informed of such a condition. After plaintiff's fall, Ms. Dolan briefly spoke with plaintiff, then went to alert her supervisor. She further attests that after returning to the area of the mat, she observed the buckled condition and proceeded to fix it. Aileen Clark, Circulation Supervisor, stated that she was in the Circulation Office at the time of the incident and did not see or know about the buckled condition of the mat prior to the accident. Library Director Theodore Gutmann ("Gutmann") attested that he reviewed the video surveillance footage from the time of the accident and that it shows a programmer, who was not a library employee, entering the library with a cart full of rocks for a teen painting program and that, as the cart passed over the mat, it caused buckling in the mat. He further avers that the footage shows the programmer entering the library at 1:50 (one minute fifty seconds into the video segment) and plaintiff entering the library and falling two minutes later at 3:50 (three minutes fifty seconds into the video segment).
A copy of the surveillance video has been submitted to the Court. The video does show an individual pushing a cart over the floor mat, causing the buckling and attempting to readjust the mat, followed by several other individuals entering the library. Two minutes after the cart crossed the mat, plaintiff entered, tripped and fell. It appears that her foot was touching the mat near the first area of buckling when she fell. Plaintiff testified at the 50-h hearing that she did not see anything other than the buckling which could have caused her fall.
In opposition, plaintiff argues that the floor mat, which plaintiff testified was positioned over a rug, may have been in poor condition, that defendant is responsible for the actions of the programmer and that questions of fact remain about the relationship between the library and the programmer and the level of control the library had over the rock painting program. Plaintiff's counsel asserts that the way the program was promoted in the library newsletter provides "ample evidence" that the program was organized and/or produced by defendant and that there is no information about the sufficiency of daily inspections of the mat. In reply affidavit, Gutmann attests that programmers, including Janette Stevens, are not employees of the library and are selected based upon their skills, upon recommendations of others and upon the needs of library patrons. He further avers that the library approves overall subject matter and provides the location and time slot for the program and that the programmer provides all of the materials. In this case, the cart used by the programmer was not provided by the library and the library was not involved in the purchase or transport of materials.
The Young Adult Program Confirmation form that was sent to the programmer indicated that the programmer was to provide her tax identification number for payment and that payment would be made at the end of the month after the program took place. Additionally, Gutmann further averred that he was aware of no prior incidents involving the mat buckling, that the mat had slip-resistant backing and that he inspected it after the incident and determined it to be in good condition without defects. Defendant's counsel asserts that defendant is not responsible for the acts of the independent contractor programmer and that, even if the library did control the program (which it denies), the accident occurred one hour before the program was to begin (at 4:00 p.m., according to the library newsletter) and the acts alleged to have caused the buckling condition were not related to the conduct of the program, but to the mode of transport of the programmer's supplies, for which she was solely responsible.
A party moving for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923 [1986]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316 [1985]). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (see O'Brien v Port Auth. of N.Y. & N.J., 29 N.Y.3d 27, 52 N.Y.S.3d 68 [2017]). The opposing party must "produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Stonehill Capital Mgmt., LLC v. Bank of the West., 28 N.Y.3d 439, 448, 68 N.E.3d 683, 688 [2016](quoting Alvarez v Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 [2011]). On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue (S.J. Capelin Associates v Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776 [1974]). However, the court must also determine whether the factual issues presented are genuine or unsubstantiated (Prunty v Keltie's Bum Steer, 163 A.D.2d 595, 559 N.Y.S.2d 354 [2d Dept. 1990]). If the issue claimed to exist is not genuine but is feigned and there is nothing to be tried, then summary judgment should be granted (Prunty v Keltie's Bum Steer, supra, citing Glick & Dolleck v Tri-Pac Export Corp., 22 N.Y.2d 439, 293 N.Y.S.2d 93, 239 N.E.2d 725 [1968]; Columbus Trust Co. v Campolo, 110 A.D.2d 616, 487 N.Y.S.2d 105 [2d Dept 1985], aff'd , 66 N.Y.2d 701, 496 N.Y.S.2d 425, 487 N.E.2d 282; Barclays Bank of New York, N.A. v. Sokol, 128 A.D.2d 492, 512 N.Y.S.2d 419, 420 [2d Dept. 1987]).
An owner or possessor of land has a common law duty to maintain his or her property in a reasonably safe condition in view of all the circumstances, including the frequency of use by others, the likelihood of injury to others, the seriousness of the potential injury, and the burden of avoiding the risk (Peralta v Henriquez, 100 N.Y.2d 139, 144, 760 N.Y.S.2d 741 [2003]; Alnashmi v. Certified Analytical Grp., Inc., 89 A.D.3d 10, 14, 929 N.Y.S.2d 620, 624 [2d Dept. 2011]; Gronski v. Cty. of Monroe, 18 N.Y.3d 374, 963 N.E.2d 1219 [2011]; Basso v. Miller, 40 N.Y.2d 233, 352 N.E.2d 868 [1976]; Alonzo v. City of New York, 188 A.D.3d 1123, 134 N.Y.S.3d 429 [2d Dept. 2020]). In order to impose liability upon a defendant based upon a dangerous condition, "there must be evidence that the dangerous condition existed, and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time" (Grullon v. W. 48th St. Redevelopment Corp., 75 A.D.3d 621, 622-23, 905 N.Y.S.2d 278, 279-80 [2d Dept. 2010]; see also Melo v. LaGuardia Fitness Ctr. Corp., 72 A.D.3d 761, 898 N.Y.S.2d 625 [2d Dept. 2010]; Barrett v. New York City Transit Auth., 176 A.D.3d 909, 111 N.Y.S.3d 615 [2d Dept. 2019], leave to appeal denied, 35 N.Y.3d 914, 153 N.E.3d 448 [2020]; Alonzo, supra) and that the condition caused plaintiff's accident, resulting in injury (Leary v. N. Shore Univ. Hosp., 218 A.D.2d 686, 630 N.Y.S.2d 554 [2d Dept. 1995]; Skay v. Pub. Libr. of Rockville Ctr., 238 A.D.2d 397, 657 N.Y.S.2d 553 [2d Dept. 1997]; Grant v. L & J G Stickley, Inc., 20 A.D.3d 506, 799 N.Y.S.2d 123 [2d Dept. 2005]; Hartman v. Mountain Valley Brew Pub, Inc., 301 A.D.2d 570, 754 N.Y.S.2d 31 [2d Dept. 2003]; Thompson v. Commack Multiplex Cinemas, 83 A.D.3d 929, 921 N.Y.S.2d 304 [2d Dept. 2011]; Bombino-Munroe v. Church of St. Bernard, 163 A.D.3d 616, 80 N.Y.S.3d 429 [2d Dept. 2018]).
Constructive notice of a hazardous condition on property may be imputed when "...the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it" (Wittman v. Nespola, 190 A.D.3d 1012, 1012-13, 136 N.Y.S.3d 885, 886 [2d Dept. 2021]; Gordon v. Am. Museum of Nat. Hist., 67 N.Y.2d 836, 492 N.E.2d 774 [1986]; Melo, supra; Abrams v. Berelson, 94 A.D.3d 782, 942 N.Y.S.2d 132 [2d Dept. 2012]; Kyte v. Mid Hudson Wendico, Inc., 131 A.D.3d 452, 15 N.Y.S.3d 147 [2d Dept. 2015]; Seung Chul Na v. JP Morgan Chase & Co., 123 A.D.3d 903, 1 N.Y.S.3d 125 [2d Dept. 2014](no constructive notice where rain water had been mopped up 30 minutes prior and other customers entered without incident); Radosta v. Schechter, 171 A.D.3d 1112, 97 N.Y.S.3d 664 [2d Dept. 2019](no constructive notice where rainwater had been dry mopped 15-25 minutes prior); Yacovelli v. Pathmark Stores, Inc., 67 A.D.3d 1002, 888 N.Y.S.2d 750 [2d Dept. 2009](no constructive notice where inspection was 3 minutes prior and steady stream of pedestrian traffic went though area). In seeking summary judgment dismissing a premises liability claim, the movant bears the initial burden of establishing that it neither created the alleged dangerous condition nor had actual or constructive notice of it (Kyte, supra; Wittman, supra; Pampalone v. FBE Van Dam, LLC, 123 A.D.3d 988, 1 N.Y.S.3d 155 [2d Dept. 2014]; Martin v. I Bldg. Co., 126 A.D.3d 861, 6 N.Y.S.3d 105 [2d Dept. 2015]; Guilfoyle v. Parkash, 123 A.D.3d 1088, 1 N.Y.S.3d 188 [2d Dept. 2014]; Ray-Bee Chang v. Adams Fairacre Farms, Inc., 84 A.D.3d 1052, 924 N.Y.S.2d 417 [2d Dept. 2011]).
Here, the surveillance video shows the buckled condition in the mat forming at or about the time that the cart was pushed across it or when an attempt to straighten the mat was made by the person pushing the cart. In the two minutes that lapsed between the creation of the condition and plaintiff's fall, multiple patrons entered the library without incident. Two minutes is insufficient time to discover the condition here at issue; therefore, constructive notice may not be imputed. Three library employees attested that they had no actual notice of the buckled condition of the mat. The remaining question is whether or not the library caused the condition at issue. As an initial matter, it should be noted that any determination made herein as to the apparent cause of the allegedly dangerous condition should not be considered res judicata or law of the case as to any claims asserted against a party who has not had the opportunity to be heard on this issue.
As to the question of how the condition was created, it seems undisputed by plaintiff or defendant that the rock-laden cart crossing the mat and/or the subsequent effort to straighten the mat caused the buckling that allegedly resulted in plaintiff's fall. There is evidence in the record that the person pushing the cart was not an employee of the library. She was an independent contractor who was retained to teach a class and the library did not control her work or how she set up for the class. The library did not supply her with a cart or direct her as to how to transport her supplies. Defendant has made a prima facie case that the alleged dangerous condition was not created by defendant or by any person for whom the Library was responsible and that there was no actual or constructive notice of the condition. In opposition, plaintiff argues that there is a question of fact as to the Library's control over the programmer who was pushing the cart, that defendant failed to offer evidence as to the last inspection/replacement of the mat and that the mat could have been worn out. Plaintiff's arguments are based upon speculation that there could have been some other factor that contributed to the mat buckling and that the way a library program was promoted in its newsletter constitutes evidence that the programmer was under the control of the library. Plaintiff also argues that the personnel at the circulation desk were sufficiently close to the mat that they should have seen the cart create the buckling or should have noticed the mat's condition within the two minutes that lapsed. The Court disagrees. Plaintiff has failed to produce admissible evidence sufficient raise an issue of fact as to whether or not defendant created or had notice of the alleged dangerous condition. Accordingly, defendant's motion seeking summary judgment dismissing plaintiff's claims against it is granted.
Plaintiff's cross-motion seeks leave to amend her complaint to add claims against Janette Stevens, the programmer who allegedly pushed the rock cart and adjusted the mat, creating the buckled condition.
Leave to amend pleadings should be freely given upon such terms as may be just (CPLR 3025[b]) absent surprise or prejudice resulting directly from the delay in seeking leave (McCasky, Davies and Associates, Inc. v New York City Health & Hospitals Corp., 59 N.Y.2d 755, 450 N.E.2d 240, 463 N.Y.S.2d 434 [1983]; Rosicki, Rosicki & Assocs., P.C. v. Cochems, 59 A.D.3d 512, 514, 873 N.Y.S.2d 184 [2d Dept. 2009]; Civ. Serv. Emps. Ass'n v. Cty. of Nassau, 144 A.D.3d 1075, 43 N.Y.S.3d 390 [2d Dept. 2016]; Park v. Home Depot U.S.A., Inc., 183 A.D.3d 645, 121 N.Y.S.3d 641 [2d Dept. 2020]). Where the delay is long, the Court should consider how long the moving party was aware of the facts underlying the proposed amendment and whether an excuse for the delay is offered (Civ. Serv. Emps. Ass'n v. Cty. of Nassau, supra; Yong Soon Oh v. Hua Jin, 124 A.D.3d 639, 1 N.Y.S.3d 307 [2d Dept. 2015]; McIntosh v. Ronit Realty, LLC, 181 A.D.3d 579, 117 N.Y.S.3d 613 [2d Dept. 2020]). A court generally should not examine the merits or legal sufficiency of the proposed amendment; however, if it is palpably insufficient or patently devoid of merit on its face, leave to amend should be denied (Rosicki, supra; Bank of Smithtown v. 219 Sagg Main, LLC, 107 A.D.3d 654, 655, 968 N.Y.S.2d 95, 97 [2d Dept. 2013]; Nanomedicon, LLC v. Research. Foundation of State Univ. of New York, 129 A.D.3d 684, 10 N.Y.S.3d 552 [2d Dept. 2015]; Civ. Serv. Emps. Ass'n, supra; Park, supra; McIntosh, supra ). An application seeking leave to amend shall be accompanied by the proposed amended pleading clearly showing the changes or additions to be made and failure to include it may be grounds for denial of leave to amend (CPLR3025(b); Scialdone v. Stepping Stones Assocs., L.P., 148 A.D.3d 950, 49 N.Y.S.3d 543 [2d Dept. 2017]; Codrington v. Wendell Terrace Owners Corp., 118 A.D.3d 844, 988 N.Y.S.2d 237 [2d Dept.2014]; Kilkenny v. L. Off. of Cushner & Garvey, LLP, 76 A.D.3d 512, 905 N.Y.S.2d 661 [2d Dept. 2010]).
Here, the claim asserted against Janette Stevens is not palpably devoid of merit and plaintiff only recently learned her name. Defendant has not alleged any prejudice that would result from amendment of the complaint and, as the claims against defendant are being dismissed on this motion, no surprise or prejudice should be caused to defendant by the grant of leave to amend. In opposition to the cross-motion, defendant argues only that a separate suit should be brought against Janette Stevens if plaintiff wishes to assert claims against her. The Court notes that the proposed amended complaint contains claims against Three Village Central School District as plead in the initial complaint, but that the supplemental summons notes that the District is out of the case. Presumably, plaintiff was seeking to keep the amendment of the complaint to a minimum; however, this may create confusion. As such, plaintiff's motion to amend the complaint to add claims against Janette Stevens is granted, but the allegations in the proposed amended complaint as asserted against Three Village Central School District are deemed discontinued with prejudice, in accordance with the prior stipulation of the parties. Additionally, the claims in the proposed amended complaint as re-alleged against Emma S. Clark Memorial Library Association and Emma S. Clark Memorial Library are deemed dismissed in accordance with this Order. If plaintiff wishes to proceed with her claims against Janette Stevens, the supplemental summons and amended complaint should be executed and filed in NYSCEF as pleadings. Additionally, a copy of the within Order with notice of entry should accompany the pleadings when service is made upon Janette Stevens.
Based upon the foregoing, the motion by Emma S. Clark Memorial Library Association and Emma S. Clark Memorial Library seeking summary judgment dismissing the claims against them is granted. Plaintiff's motion to amend its complaint to add a party is granted as set forth above. The Suffolk County Clerk is hereby directed to amend the caption of this action, upon receipt of a copy of the within order with CPLR 8019(c) notice, to read as follows:
Plaintiff shall deliver a copy of the within order with CPLR 8019(c) notice to the Suffolk County Clerk within thirty (30) days of the date of entry of this order.
This constitutes the decision and Order of the Court.