Hong Xia Wang v JPMorgan Chase & Co.
Annotate this CaseDecided on June 28, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and ALIOTTA, JJ
2011-331 Q C.
Hong Xia Wang, Respondent,
against
JPMorgan Chase & Co., JP MORGAN CHASE & CO. Doing Business as JPMORGAN CHASE BANK, N.A., JPMORGAN CHASE & CO. Doing Business as CHASE BANK, JPMORGAN CHASE BANK, N.A. and JPMORGAN CHASE BANK, N.A. Doing Business as CHASE BANK, Appellants.
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), dated April 7, 2010. The order, insofar as appealed from, denied defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendants' motion for summary judgment dismissing the complaint is granted.
Plaintiff commenced this action to recover for personal injuries allegedly sustained during a snow storm when she slipped and fell on a wet floor in the ATM lobby of a bank owned by defendants.
Defendants moved for summary judgment on the grounds that they had not created the [*2]dangerous condition which had allegedly caused plaintiff's fall, that they had not had actual or constructive notice of such condition, that they had no duty to constantly mop up any tracked-in snow from the ongoing storm, and, in any event, that they had taken reasonable precautions to prevent such condition. By order dated April 9, 2010, insofar as appealed from, the Civil Court denied defendants' motion.
In our view, the Civil Court properly determined that defendants had satisfied their initial burden of establishing their prima facie entitlement to judgment as a matter of law by marshaling sufficient evidence eliminating any material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Specifically, defendants submitted surveillance photographs from the bank lobby showing that, at the time plaintiff fell, there were "wet floor signs" and a runway of floor mats leading from the building's entrance and continuing up the center aisle of the lobby. Defendants also submitted an affidavit by the assistant branch manager of the bank in which he averred that he had not observed any wetness on the lobby floor either one hour prior to the incident or upon attending to plaintiff after her fall.
Contrary to the Civil Court's finding, plaintiff's opposition papers failed to raise a triable issue of fact on the issue of liability. In her opposition, plaintiff agreed that, on the day of the incident, it was snowing and that mats and caution signs had been placed on the lobby floor by defendants' management. However, plaintiff argued that defendants had actual or constructive notice of the dangerous condition because they had been aware that it was snowing and had undertaken remedial measures. Moreover, she insisted that there was a question as to whether the remedial measures undertaken were reasonable and appropriate. She offered an affidavit by an engineer whose expert opinion was that the floor where plaintiff fell was made of inherently slippery material, and that the floor mats were not fully absorbent and failed to cover an ample portion of the lobby.
Plaintiff's argument that defendants were aware of the dangerous condition in light of the poor weather is without merit since "[g]eneral awareness that wet and snowy weather conditions existed is insufficient to establish [actual or] constructive notice of the particular wet condition which [allegedly] caused plaintiff to fall" (Wartski v C.W. Post Campus of Long Is. Univ., 63 AD3d 916, 917 [2009]; see also Yearwood v Cushman & Wakefield, 294 AD2d 568, 569 [2002]). Plaintiff's assertion that defendants' placement of a caution sign demonstrated their actual notice, is equally unavailing (Pluhar v Town of Southampton, 29 AD3d 975, 975-976 [2006]). Moreover, there was no evidence establishing that the alleged condition existed for a sufficient length of time to impute constructive notice (see Ford v Citibank, N.A., 11 AD3d 508, 509 [2004]). Thus, defendants cannot be held to have had actual or constructive notice of the dangerous condition.
Absent actual or constructive notice of a particular wet or slippery condition, defendants were "not required to cover all of [t]he floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain" (Orlov v BFP 245 Park Co., LLC, 84 AD3d 764, 765 [2011], quoting Naulo v New York City Bd. of Educ., 71 AD3d 651, 651 [2010] [internal quotation marks omitted]). Thus, plaintiff's questions regarding whether the specific remedial actions defendants undertook were reasonable and appropriate similarly fail to raise a triable issue of fact. [*3]
We further find that the affidavit by plaintiff's expert should not have been considered in determining the motion, since plaintiff did not identify the expert until after the note of issue and certificate of readiness had been filed (see CPLR 3101 [d] [1]; Wartski v C.W. Post Campus of Long Is. Univ., 63 AD3d at 917).
As plaintiff failed to present evidence sufficient to raise a triable issue of fact, we find that defendants' motion for summary judgment dismissing the complaint should have been granted (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557).
Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 2012
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