Amaral v Metro-North Commuter R.R. Co.

[*1] Amaral v Metro-North Commuter R.R. Co. 2005 NY Slip Op 50469(U) Decided on March 21, 2005 Supreme Court, Bronx County Roman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 21, 2005
Supreme Court, Bronx County

Jorge Amaral, Plaintiff(s),

against

Metro-North Commuter Railroad Company, Defendant(s).



24212/02

Nelson S. Roman, J.

Defendant moves seeking an order granting summary judgment in its favor. Defendant asserts that to the extent that plaintiff has been unable to establish actual or constructive notice of the defective condition that caused his accident, he has failed to establish a prima facie case of negligence. Defendant also asserts that plaintiff has been unable to establish where and what caused him to fall. Plaintiff opposes the instant motion asserting that to the extent that defendant has failed to provide all outstanding discovery, plaintiff is unable to fully oppose the motion herein. Plaintiff further asserts he has adequately established where he fell and the cause. Moreover, the picture of the defective condition raises an issue of fact with respect to constructive notice. Plaintiff also cross-moves seeking an order of preclusion for defendants alleged failure to provide outstanding discovery. Plaintiff also seeks additional depositions and affidavits from defendant. Defendant opposes the cross-motion asserting that all discovery has been provided.

For the reasons that follow hereinafter, defendant's motion and plaintiff's cross-motion are hereby denied.

This case involves a claim for personal injuries allegedly sustained by plaintiff. According to plaintiff on the morning of September 15, 1999, at the Spuyten Duyvil Metro North train station, he tripped and fell while descending the steps located therein. Plaintiff alleges that one of the stairs therein was defective.

According to plaintiff he fell while descending the steps at the train station. At his 50-h hearing, he testified that as he was descending the left side of the steps, he fell. As he was halfway down the steps, plaintiff tripped and fell down. Plaintiff believes that a crack on the steps caused him to fall. He testified that he believed that the crack caused his fall because he felt his right foot go underneath him. He testified that the crack that caused his fall was depicted in a picture taken by an investigator. According to plaintiff the picture depicts a crack on the step five steps down from the top. When he accompanied the investigator to the area of his accident, he pointed to the area [*2]where he had his fall and both him and the investigator counted the number of steps.

The picture that plaintiff refers to depicts a crescent shaped depression on a set of concrete or cement steps. The depression has a few other cracks around its perimeter. The dimensions of said depression were never elicited by any of the witnesses produced.

J.P. Wiley (Wiley), an employee of defendant and superintendent of train stations testified regarding records exchanged by the defendant and his knowledge regarding procedures employed by him and defendants. The records Wiley discussed were recap reports. According to Wiley the recap reports are a computerized document evidencing the contents of hand generated work orders which relate to repairs or work performed. The reports are virtually identical to the original work orders. Wiley discussed reports dating back to August 1997. He testified that on March 11, 1999 and on August 25, 1999, the recap reports indicate that repairs were made to the platform and rails of the steps at the Spuyten Duyvil station. Besides repairs, the reports indicate debris removal on said dates. With respect to procedure, Wiley stated that the defendant train stations would undergo regular inspections. Said inspections were under the purview of district managers who were assigned certain stations. Defendant would perform two types of repairs at the train stations cyclical and reactionary repairs. The cyclical repairs did not involve the stairs. If repairs were needed they would be performed by gangs employed by defendant. Different gangs did different types of repairs. The stations were cleaned daily. The daily cleaning consisted of routine garbage pick up. With respect to complaints about conditions at the stations, said complaints would be made to the customer service department. Said department would inspect the area complained about and if necessary would contact Wiley for repairs. If letters were sent to customer service regarding complaints, said letters would be forwarded to Wiley. Prior to the date of this accident, Wiley would visit the Spuyten Duyvil station once a month. He knew of no prior accidents involving the stairs.

When defendant made its motion and plaintiff made his cross-motion, defendant had not yet responded to plaintiff's notice for discovery and inspection dated October 29, 2004. This demand sought post-deposition discovery On January 19, 2005, defendant provided a response to said demand and provided a plethora of documents responsive to said demand.

Summary Judgment

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must loose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. V. [*3]Habeeb, 248 AD2d 50 (1st Dept. 1997).

When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000):

Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcok, 190 AD2d 1037, 593 N.Y.S.2d 657; see generally, Black v. Chittenden, 69 NY2d 665, 511 N.Y.S.2d 833, 503 N.E.2d 1370; Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 341, 357 N.Y.S.2d 478, 313 N.E.2d 776). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial(see, Schoen v. Rochester Gas & Elec., 242 AD2d 928, 665 N.Y.S.2d 372; Mickelson v. Babcock, supra).

See also, Yaziciyan v. Blancato, 267 A.D>2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick & Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).

Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960).

Generally, pursuant to CPLR §3212(f), a motion for summary judgment will be denied if it appears that the facts necessary to oppose the motion exist but are unavailable to the opposing party. This is particularly true if the facts necessary to oppose the motion are within the exclusive knowledge of the moving party. Franklyn National Bank of Long Island v. De Giacomo, 20 AD2d 797 (2nd Dept. 1964); De France v. Richard W. Oestrike, 8 AD2d 735 (2nd Dept. 1959); Blue Bird Coach Lines, Inc. v. 107 Delaware Avenue, N.V., Inc, 125 AD2d 971 (4th Dept. 971).

Premises Liability and Common Law negligence

Absent a duty of care to the person injured, a party cannot be held liable in negligence. Palsgraf v. Long Island R.R. Co., 248 NY 339 (1928). In cases where there is a duty and that duty is breached, a party is held to have acted negligently. To impose common-law negligence, the tort, the duty breached, must be the proximate cause of the accident. Misirlakis v. East Coast Entertainment Props., 297 AD2d 312 (2nd Dept. 2002).

The common law dictates that a landowner is duty bound to maintain his or her property in a reasonably safe condition. Basso v. Miller, 40 NY2d 253 (1976). Logically, the law dictates that reasonable care be utilized in the maintenance of the property, taking into account all circumstances such as the likelihood of injuries to others, the seriousness of the injury, and the burden involved in avoiding the risk. Id. Premises liability is by no means predicated solely on ownership. Liability for [*4]a dangerous condition on or within a property, is instead predicated upon occupancy, ownership, control or special use of the premises at issue. Balsam v. Delma Engineering Corporation, 139 AD2d 292 (1st Dept. 1998); Valmon v. 4M & M Corporation, 291 AD2d 343 (1st Dept. 2002); Allen v. Pearson Publishing, 256 AD2d 528 (2nd Dept. 1998); Millman v. CitiBank, N.A., 216 A.D.D2d (2nd Dept. 1995); Bruhns v. Antonelli, 255 AD2d 478 (2nd Dept. 1998); Kraemer v. K-Mart Corporation, 226 AD2d 590 (2nd Dept. 1996). Additionally, it is well established that no liability will be found absent proof that a defendant actually created the dangerous condition or alternatively, had actual or constructive notice of the same. Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994); Bogart v. F.W. Woolworth Compnay, 24 NY2d 936 (1969); Armstrong v. Ogden Allied Facility Management Corporation, 281 AD2d 317 (1st Dept. 2001); Allen v. Pearson Publishing, 256 AD2d 528 (2nd Dept. 1998); Kraemer v. K-Mart Corporation, 226 AD2d 590 (2nd Dept. 1996).

A defendant is charged with having constructive notice of a defective condition when said condition is visible, apparent, and exist for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy the same. Gordon v. American Museum of Natural History, 67 NY2d 836 (1986). The notice required must be more than general notice of any defective condition. Id.; Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994). The law requires notice of the specific condition alleged at the specific location alleged. Id.

It is well settled that even in the absence of any direct evidence of actual or constructive notice, a jury can infer constructive notice from a photograph. Taylor v. New York City transit Authority, 48 NY2d 903 (1979); Blake v. City of Albany, 48 NY2d 875 (1979); Karten v. City of New York, 109 AD2d 126 (1st Dept. 1985). The only requirement is that the pictures depicting the defect be taken close in time to the alleged accident and that there be testimony that the defect depicted accurately represent the accident causing defect. Id. The rationale behind this is that a "jury could infer from the appearance of the defect***that the condition must have come into existence over such a length of time that knowledge of such condition should have been acquired by the defendant in the exercise of reasonable care." Karten v. City of New York, 109 AD2d 126, 127-128 (1st Dept. 1985). In Karten, the appellate court reversed the trial court's dismissal of plaintiff's case. Id. The appellate court disagreed with the trial court's conclusion that plaintiff failed to establish a prima facie case. Id. The appellate court concluded that although plaintiff could show no direct evidence of actual or constructive notice of the defect which allegedly caused her accident, the photograph of the defect, was sufficient to establish constructive notice. Id.

Striking Pleadings and Preclusion

CPLR §3126, allows the court to strike pleadings or preclude a party from offering testimony when there has been a failure to comply with discovery. Whether it's preclusion or the striking of pleadings, the analysis employed by the case law is the same. The trial court in its broad discretion, can dismiss a pleading when a party disobeys court orders and by its conduct, frustrates the disclosure scheme promulgated by the CPLR. Zletz v. Wetanson, 67 NY2d 711 (1986). Striking a party's pleading for failure to provide discovery is an extreme sanction, warranted only when the [*5]failure to disclose is willful, contumacious, or when the non-disclosing party has violated discovery Orders. Bako v. V.T. Trucking Co., 143 AD2d 767 (1st Dept. 1999). Where the failure to disclose is neither willful nor contumacious, a single instance of non-compliance does not warrant the striking of a party's pleadings. Palmenta v. Columbia University, 266 AD2d 90 (1st Dept. 1999); Commerce & Industry Insurance Company v. Lib-Com, Ltd, 266 AD2d 142 (1st Dept. 1999). Only when a party adopts a pattern of non-compliance in violation of court Orders thereby delaying the discovery process, is the striking of pleadings warranted. Gutierrez v. Bernard, 267 AD2d 65 (1st Dept. 1999). Helms v. Gangemi, 265 AD2d 203 (1st Dept. 1999).

Discussion

Defendant argues that the evidence submitted fails to establish a prima facie case of negligence. Defendant asserts that it is not clear where plaintiff fell and that the evidence fails to establish actual or constructive notice of the defect alleged. While plaintiff's testimony is inconsistent the Court must disagree with the defendant.

Given the record before this Court, defendant fails to establish prima facie entitlement to summary judgment. Plaintiff establishes that he fell on the steps herein and that he fell on the crack depicted in the photograph which was taken about two months after the accident claimed. Although inartfully, plaintiff testified that he believed that it was the crack that caused his fall and that the crack was actually shown in the photograph. The photograph depicts a jagged and irregular crack on concrete or asphalt steps. In the photograph, the crack appears to have some depth and size and it doesn't appear to have been freshly created. While there is no evidence of actual notice, the photograph of the defect raises a material issue of fact with respect to constructive notice. The jury may infer that given the appearance of the crack, the crack was there for a prolonged length of time. As such, the defendant should have seen the crack prior to plaintiff's accident. This is especially true when viewed in conjunction with Wiley's testimony. Wiley stated that all the stations were cleaned daily, including the Spuyten Duyvil station. A jury could find that the defect should have been discovered the last time the stairs were cleaned. Consequently, having failed to establish the absence of notice, defendant's motion is denied. Because defendant's motion is denied based on defendant's failure to establish prima facie entitlement to summary judgment, the Court need not decide whether said motion should have been denied pursuant to CPLR §3212(f).

Plaintiff's cross-motion is denied as moot. Defendant has fully responded to the discovery demands made. While plaintiff seeks additional depositions and affidavits, he has not made the proper showing within his cross-motion. By all accounts, defendant provided a witness who testified about maintenance and repair records which were previously provided to plaintiff. This witness, Wiley, also testified as to defendant's policy and procedures as they relate to maintenance. The new discovery provided by defendant on January 19, 2005 is completely responsive to the demands made. If plaintiff believes he needs more witnesses or affidavits, he must make a new and proper demand. Should defendant fail to comply, plaintiff can make any appropriate motions thereafter. The Court cannot find that defendant's behavior has been either willful, deliberate or contumacious. [*6]

Parties are directed to serve a copy of this Order on each other within 30 days (30) hereof.

This constitutes this Court's decision and Order.

Dated :March 21, 2005

Bronx, New York

________________________________Nelson S. Roman, J.S.C.