Perkins v Gervis

[*1] Perkins v Gervis 2006 NY Slip Op 50335(U) [11 Misc 3d 1061(A)] Decided on March 1, 2006 Supreme Court, Orange County Lubell, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2006
Supreme Court, Orange County

Keith R. Perkins, Plaintiff,

against

Michael Gervis, DAVID ROSEN, DEREK BLEMENFELD, d/b/a GOSHEN SHOPPING ASSOCIATES, and CVS /PHARMACY, INC., Defendants.



4448/04



Stephen Arfine, Esq.

Arfine & D'Ambrozio, LLP

245 Saw Mill River Road

Hawthorne, New York 10532

Robert P. Augello, Esq.

29 Bloomingburg Road

Middletown, New York 10940

Ethan I. Davis, Esq.

2800 Financial Plaza

Providence, Rhode Island 02903

Lewis J. Lubell, J.

Plaintiff moves for summary judgment claiming that the defendant CVS/Pharmacy, Inc. ("CVS") negligently maintained the subject loading dock by failing to remedy an ice condition upon which plaintiff slipped and fell. Plaintiff alleges that CVS had notice of the ice condition in two respects: (1) actual and constructive notice of the ice due to the presence of a boot frozen therein for a period of several days preceding the plaintiff's accident, (2) actual notice of the ice pooling condition at the location of the accident and therefore constructive notice of each recurrence of the condition. Plaintiff further contends that CVS failed to maintain adequate lighting of the subject loading dock for which it assumed a responsibility to maintain.

Plaintiff also seeks summary judgment as against defendants Michael Gervis, David Rosen, Derek Blemenfeld, d/b/a Goshen Shopping Associates (collectively known hereinafter as "GSA") claiming that GSA failed to properly maintain the gutters and downspouts in the area of [*2]the loading dock which caused or contributed to the icy condition.

Defendant GSA opposes plaintiff's motion for summary judgment and cross-moves for summary judgment against plaintiff and seeks dismissal of CVS's cross-claims against GSA predicted on the theory that it is mere speculation that the allegedly defective gutters were the cause of the accumulation of ice on the loading dock. GSA further contends that the ice condition did not exist for a sufficient period of time which GSA would have an opportunity to discover and remedy. Furthermore, GSA contends that CVS's refusal to clear the area where plaintiff slipped and fell coupled with plaintiff's knowledge that the area was slippery were the proximate causes of the accident.

Defendant CVS opposes plaintiff's motion for summary judgment and cross-moves for summary judgment claiming the absence of a condition it created and an absence of constructive notice of the ice upon which plaintiff slipped and fell. CVS also contends that due to plaintiff's own comparative negligence, summary judgment is not appropriate. Finally, CVS states that GSA is not entitled to summary judgment due to its obligations under the lease to maintain the exterior of the leased premises, i.e. maintain the gutters and downspouts as well as the proper lighting of the exterior.

FACTS

Plaintiff, Keith Perkins, a delivery truck driver, was caused to slip and fall from a loading dock owned by GSA and leased by CVS. The accident occurred in the early morning hours of December 31, 2002 while plaintiff was in the course of his employment. On the morning in question, Mr. Perkins parked his truck at a different location on the loading dock than usual due to the presence of an unattended truck blocking the regular delivery point. Upon reaching the loading dock, Mr. Perkins claimed to have noticed that the loading dock was covered with ice and snow and insisted that CVS employees remove any ice and snow from the portion of the loading dock which would be needed to safely offload the merchandise being delivered. CVS's representative did not deny these allegations but merely indicated he could not recall the whether the loading dock needed to be cleared of ice and snow on the morning in question. Mr. Perkins testified that CVS employees used shovels and salt to clear the ice in the area of the delivery. Mr. Perkins also stated that the loading dock area was quite dark and that the exterior lights above the loading dock were not functioning at the time of the accident.

Subsequent to the shoveling and salting of the loading dock by CVS employees and during the offloading process, Mr. Perkins slipped and fell on what he discovered to be a patch of ice located in the vicinity of a downspout that was attached to a pole on the loading dock. After slipping and falling off of the loading dock, Mr. Perkins looked up and noticed that the gutter to which the downspout was attached had separated from the roof of the loading dock. Mr. Perkins stated that this condition permitted water to fall directly from the roof onto the loading dock instead of down the downspout and onto the surface of the parking lot.

CVS admitted that its employees undertook the responsibility of remediating any ice or snow conditions on the loading dock. Moreover, CVS acknowledged that there was definitely ice present in the location where Mr. Perkins slipped and fell, and that CVS knew about the ice condition before plaintiff's accident, i.e. there was regularly ice around the pole to which the downspout was attached, and CVS stated that it was unsure of whether the ice was present from the gutter or from icicles which built up during the winter and dripped as they melted when the sun came out. CVS also testified that at the time of the accident, there was a boot frozen into the [*3]ice upon which plaintiff slipped and fell. The boot was definitely present and frozen in the ice for at least a few days prior to the accident according to CVS.

GSA testified that it was responsible for maintaining the gutters and downspouts for the subject premises. GSA had a representative present on the site every day, Mr. Dejung, who was responsible for checking the property for any problems, handling tenant complaints and seeing that all systems on the property were operational. Additionally, GSA conducted at least an annual inspection of the property, but one representative, Mr. Itzkowitz, would visit the property at least 4-5 times each year, mostly for routine visits. Moreover, GSA admitted that CVS was responsible for maintenance of the interior of the leased premises, and that GSA was responsible for exterior repairs. GSA contends that CVS was responsible for maintaining the exterior lights despite the fact that GSA supplied the light fixtures themselves.

According to paragraph 3 of the lease agreement, CVS was obligated to make all non-structural repairs to the interior of the leased premises and the landlord was obligated to make all other repairs, be they interior or exterior. Repairs and replacements of an electrical or plumbing nature were also the responsibility of the landlord so long as they exceeded $1,500.00. GSA reserved the right of inspection of the leased premises and further obligated itself to maintain the parking and service areas in good repair.

ANALYSIS

Summary Judgment Standard

CPLR §3212(b) states in pertinent part that a motion for summary judgment "shall be granted if, upon all of papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."

In Andre v Pomeroy, 35 NY2d 361, 364 (1974), the Court of Appeals held that: [s]ummary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law . . . when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated.

"Summary judgment is a drastic remedy that "should not be granted where there is any doubt as to the existence of a triable issue" (citations omitted). In its analysis of such a motion, a court must construe the facts in a light most favorable to the nonmoving party so as not to deprive that person his or her day in court (citations omitted)." Russell v A. Barton Hepburn Hosp., 154 AD2d 796, 797 (3rd Dept. 1989); See also, Moskowitz v Garlock, 23 AD2d 943, 944 (3rd Dept., 1965). While summary judgment is an available remedy in some cases, its dire effects preclude its use except in "unusually clear" instances. Stone v Aetna Life Ins. Co., 178 Misc. 23, 25 (Sup. Ct., New York County,1941). "A remedy which precludes a litigant from presenting his evidence for consideration by a jury, or even a judge, is necessarily one which should be used sparingly, for its mere existence tends to alter our jurisprudential concept of a day in court.'" Wanger v Zeh, 45 Misc 2d 93, 94, (Sup. Ct., Albany County, 1965), aff'd 26 AD2d 729 (3rd Dept.1966). Given the fact that summary judgment is the procedural equivalent of a trial, [*4]granting summary judgment requires that no material or triable issues of fact exist. When doubt exists or where an issue is arguable, or "fairly debatable," summary judgment must be denied. Bakerian v H.F. Horn, 21 AD2d 714 (1st Dept. 1964); Jones v County of Herkimer, 51 Misc 2d 130, 135 (Sup. Ct., Herkimer County, 1966); Town of Preble v Song Mountain, Inc., 62 Misc 2d 353, 355 (Sup. Ct., Courtland County, 1970); See also, Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 404 (1957). The drastic remedy of summary judgment is rarely granted in negligence cases since the very question of whether the defendant's conduct was indeed negligent is a jury question except in the most glaring cases. See, Johannsdottir v Kohn, 90 AD2d 842 (2nd Dept. 1982).

Courts are not authorized to try issues in a case, but rather to determine whether there is an issue to be tried. Esteve v Abad, 271 AD2d 725, 727 (1st Dept. 1947). "Issue-finding, rather than issue-determination, is the key to the procedure. If and when the court reaches the conclusion that a genuine and substantial issue of fact is presented, such determination requires the denial of the application for summary judgment." Id.; Sillman, 3 NY2d at 404.

According to the Court of Appeals, "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [citations omitted]. Failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the opposing papers [citations omitted]." Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985); Ayotte v Gervasio, 81 NY2d 1062, 1063 (1993); Finkelstein v Cornell University Medical College, 269 AD2d 114, 117 (1st Dept. 2000).

Duty to Maintain Premises in a Reasonably Safe Condition

A landowner's responsibility is to assure that the conditions on his property are reasonably safe. Basso v Miller, 40 NY2d 233, 241 (1976); Comeau v Wray, 241 AD2d 602, 603 (3rd Dept. 1997); White v Gabrielli, 272 AD2d 469, 469 (2nd Dept. 2000); Rovegno v Church of the Assumption, 268 AD2d 576, 576 (2nd Dept. 2000); Kurshals v Connetquot Central School District, 227 AD2d 593, 593 (2nd Dept. 1996). In Comeau, supra, a deliveryman sued the property owners after falling on stairs leading to a root cellar. Landowners are under a duty to maintain their premises in a reasonably safe condition in view of the circumstances, including the likelihood of injury to others. See, Id. at 603. This duty encompasses warning others of the danger, including obvious ones, or take reasonable steps to protect others from the dangers. See, Id.

Tenants may be held liable for negligently permitting the leased premises to become dangerous, and this potential for liability exists independent of the lease terms or whether the tenant was contractually obligated to keep the premises in good repair. See, Cohen v Central Parking Systems, Inc., 303 AD2d 353, 354 (2nd Dept. 2003); McNelis v Doubleday Sports, Inc., 191 AD2d 619, 620 (2nd Dept. 1993); Chadis v Grand Union Company, 158 AD2d 443, 444 (2nd Dept. 1990).

In this case, CVS admitted that it performed snow and ice remediation on the loading dock. Mr. Perkins' uncontroverted testimony reveals that he specifically required CVS employees to clear a path in the delivery area of the loading dock sufficient to permit the safe unloading and delivery of the goods from his truck. CVS employees shoveled snow and sprinkled salt in a small area of the loading dock, but did not remove the ice which caused plaintiff to slip and fall.

[*5]Notice of Ice by CVS

As the initial proponent of summary judgment, plaintiff was obligated to prove that CVS had either actual or constructive notice of the precipitating condition. See generally, Gordon v American Museum of Natural History, 67 NY2d 836 (1986). CVS admitted that a boot was frozen into the ice upon which plaintiff slipped and fell, and the boot was frozen therein for at least a few days prior to plaintiff's accident. This uncontroverted evidence demonstrates that CVS acutally knew of the presence of ice in the specific location of the accident.

Moreover, the evidence reveals that CVS possessed constructive notice of the ice 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 defendant's employees to discover and remedy it (Negri v. Stop & Shop, 65 NY2d 625, 626, 491 N.Y.S.2d 151, 480 N.E.2d 740; Lewis v. Metropolitan Transp. Auth., 64 NY2d 670, 485 N.Y.S.2d 252, 474 N.E.2d 612, affg. on opn. at 99 AD2d 246, 249, 472 N.Y.S.2d 368)." Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). In Pugliese v D'Estrada, 259 AD2d 743 (2nd Dept. 1999), the fact that defendant knew that melting snow and ice tended to leak from a gutter onto an adjacent staircase constituted sufficient constructive notice. CVS's admission that it knew the boot was frozen in the ice and present for several days prior to the accident was constructive notice that the ice was present. The ice itself was present for more than sufficient time for CVS to have discovered it and cured the defect. See, Panzarella v Multiple Parking Services, Inc., 238 AD2d 906 (4th Dept. 1997); Huth v Allied Maintenance Corp., 143 AD2d 634, 636 (2nd Dept. 1988); Backer v Central Parking Systems, 292 AD2d 408, 409 (2nd Dept. 2002); Rafael-Sharaf v Waldbaum's Inc., 238 AD2d 328 (2nd Dept. 1997). This ice condition was admittedly present for several days prior to the accident, more than sufficient time to discover and cure it.

Actual knowledge of a dangerous or hazardous condition places a responsible party on constructive notice of each recurrence of that same condition. See, Schmidt v DiPerno, ___ AD3d ___, 2006 WL 45254 (2nd Dept. January 10, 2006); Mondello v DiStefano, 16 AD3d 637, 638 (2nd Dept. 2005); Chin v Harp Marketing, 232 AD2d 601, 602 (2nd Dept. 1996); Weisenthal v Pickman, 153 AD2d 849 (2nd Dept. 1989); Chianese v Meier, 98 NY2d 270, 278 (2002) (holding that actual notice of a particular recurring safety issue that was reasonably within the defendant's power to correct was sufficient to establish constructive notice of the specific recurrence); Clark v Wong, 293 AD2d 640 (2nd Dept. 2002); Freund v Ross- Rodney Hous. Corp., 292 AD2d 341 (2nd Dept. 2002); McLaughlan v Waldbaums, Inc., 237 AD2d 335, 336 (2nd Dept. 1997); Colt v Great Atl. & Pac. Tea Co., 209 AD2d 294, 295 (1st Dept. 1994); Padula v Big V Supermarkets, 173 AD2d 1094, 1096 (3rd Dept. 1991)).

CVS admitted that year after year, ice would accumulate around the pole to which the downspout was attached and it was this ice upon which plaintiff slipped and fell from the loading dock. CVS possessed sufficient notice to cure the defect. Therefore, the Court grants plaintiff's motion for summary judgment as against CVS limited only to the issue of CVS's notice of the ice condition. CVS's cross-motion for summary judgment must therefore be denied as academic.

There remains a question of fact, however, whether there was sufficient lighting of the area in question. CVS's employees testified that the light from the store, the truck and the adjacent parking area was sufficient. Plaintiff states that the area was too dark. This dispute creates a classic issue of fact about which a jury must determine. It is not ripe for summary determination. See, Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 404 [*6](1957).

GSA's Notice of the Condition

Plaintiff alleges that the cause of the ice buildup where he fell was the gutter separating from the downspout over the loading dock, thus permitting water to flow directly onto the loading dock instead of down the downspout and onto the surface of the parking area. CVS stated that it was unsure whether the origin of the ice around the pole and downspout was a result of the separated gutter or just reformed ice from melting icicles on the roof of the loading platform. GSA denies knowledge of the broken downspout.

GSA acknowledged responsibility for the maintenance of the downspout and gutter. There is no evidence, however, affirmatively proving how long the gutter was broken from the downspout. Absent such proof that the gutter was broken for a sufficient length of time to permit GSA to have discovered and remediated it requires denial of plaintiff's motion for summary judgment that GSA had notice of the defective downspout. See, Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986).

However, GSA's motion for summary judgment must be denied as well. Where members of the public frequent a location, a landowner owes a "nondelegable duty to provide members of the general public with a reasonably safe premises, including a safe means of ingress and egress.' (Thomassen v. J & K Diner, 152 AD2d 421, 424, 549 N.Y.S.2d 416; see, Richardson v. Schwager Assoc., 249 AD2d 531, 531-532, 672 N.Y.S.2d 114).". Arabian v Benenson, 284 AD2d 422, 422 (2nd Dept. 2001); see, Reynolds v Sead Development Group, 257 AD2d 940, 940 (3rd Dept. 1999); June v Bill Zikakis Chevrolet, Inc., 199 AD2d 907, 909 (3rd Dept. 1993). This duty includes a duty to provide adequate lighting for such persons frequenting the locations. See, Tarrazi v 2025 Richmond Avenue Associates, Inc., 296 AD2d 542, 544 (2nd Dept. 2002); Shirman v New York City Transit Authority, 264 AD2d 832, 833 (2nd Dept. 1999); Gallagher v St. Raymond's Roman Catholic Church, 21 NY2d 554, 558 (1968). The owner of a premises open to the public is affirmatively obligated to light the exterior of the premises to provide a safe means of ingress and egress. See, Gallagher, supra.

Where a property owner has a nondelegable duty to keep the premises safe, the duty may not be delegated to agents, employees or independent contractors. See, Backiel v Citibank, N.A., 299 AD2d 504 (2nd Dept. 2002). The property owner is in the best position to assume the risks associated with conditions existing on its property since it is consistent with the general responsibility of owners to maintain their premises in a reasonably safe condition under all circumstances. See Basso, 40 NY2d 233. This obligation owed to the general public encompasses all persons, including workers who come upon the premises. See, Backeil, 299 AD2d at 507.

GSA testified that it employed a worker, Mr. Dejung, to be present on the property every day and conduct inspections of the premises, collect rents and be available for tenant problem reporting. Another GSA representative, Mr. Itzkowitz, inspected the property at least 4-5 times each year in addition to the daily inspections conducted by Mr. Dejung. CVS's testimony that the ice buildup around the pole and the boot frozen therein for several days prior to the accident raises a question of fact whether GSA should have noticed the ice buildup and cleared it since its non-delegable duty is to provide a safe means of ingress and egress to and from the leased premises of which the loading dock is just such a means.

Plaintiff's Comparative Negligence [*7]

CVS points out that plaintiff is not entitled to summary judgment due to his comparative negligence, further alleging that the ice upon which plaintiff slipped and fell was an open and obvious condition.

As expressed in Cupo v Karfunkel, 1 AD3d 48 (2nd Dept. 2003), once a plaintiff presents evidence of a dangerous condition, the burden shifts to the landowner to demonstrate that he acted with reasonable care to make the property safe based upon the likelihood of injury to others and the burden of avoiding the risk. See, Id. at 52. Whether a condition is open and obvious has nothing to do with this duty. The duty is not abrogated by the characterization of the hazard as open and obvious since by doing so leads to the ridiculous result of encouraging landowners to make hazards on their properties as dangerous as possible to avoid liability if someone is injured as a result of that hazard. See, Id. The Court did caution, however, that open and obvious conditions, which are not inherently dangerous require no remediation, since property maintenance issues do not come into play. See, Id. In Morgan v Genrich, 239 AD2d 919 (4th Dept. 1997), the Court held that the fact that a hazard is readily observable "may be relevant on the issue of plaintiff's comparative negligence, but it does not negate the duty of the defendants to keep their premises reasonably safe." Id. at 920; see, Chambers v Maury Povich Show, 285 AD2d 440, 440 (2nd Dept. 2001); Acevedo v Camac, 293 AD2d 430 (2nd Dept. 2002); Tuttle v Anne LeConey, Inc., 258 AD2d 334, 335 (1st Dept. 1999); Crawford v Marcello, 247 AD2d 907, 907 (4th Dept. 1998); Tenebruso v Toys "R" Us Nytex, Inc., 256 AD2d 1236, 1237 (4th Dept. 1998); Vereerstraeten v Cook, 266 AD2d 901, 901 (4th Dept. 1999); Smith v Zink, 274 AD2d 885, 885-886 (3rd Dept. 2000); Orellana v Merola Associates, Inc., 287 AD2d 412, 413 (1st Dept. 2001). Furthermore, the extent to which a defect is open and obvious addresses the issue of plaintiff's comparative negligence, not the defendant's overall duty to maintain its premises in a reasonably safe condition. It would not make sense to absolve a defendant of liability even if a condition is deemed to be open and obvious, since such a finding runs contrary to New York law.

As expressed in Westbrook v WR Activities-Cabrera Markets, 5 AD3d 69 (1st Dept. 2004), the issue of whether a condition is open and obvious is generally a jury question and should only be resolved as a matter of law when the facts compel such a conclusion. See, Id. at 72. For a condition to be open and obvious as a matter of law requires that it could not be overlooked by anyone making a reasonable uses of his senses. See, Garrido v City of New York, 9 AD3d 267, 268 (1st Dept. 2004). Whether the condition is able to be observed does not end the inquiry, since the nature and location of some hazards make them likely to be overlooked or misperceived despite their technical visibility. See, Id.

The issue of comparative negligence is a question of fact proper for the jury's determination.

Louise B.G. v New York City Bd. of Educ., 143 AD2d 728, 730 (2nd Dept. 1988) (citing Willis v. Young Men's Christian Ass'n of Amsterdam, 28 NY2d 375 (1971)). A determination of whether plaintiff is contributorily negligent is almost invariably question of fact, and is for jury to determine in all but clearest cases. See, Williams v City of New York, 101 AD2d 835, 836 (2nd Dept. 1984); See, also, Weber v City of New York, 101 AD2d 757, 757 (1st Dept. 1984), affirmed 63 NY2d 886 (1984); Snyder v Moore, 72 AD2d 580, 581 (2nd Dept. 1979). New York has abandoned contributory negligence for a form of comparative negligence, the purpose of which is to ameliorate the harsh results when a plaintiff is slightly negligent and fairly to apportion [*8]damages among the parties. Knieriemen v. Bache Halsey Stuart Shields Inc., 74 AD2d 290, 294 (1st Dept. 1980), appeal dismissed 50 NY2d 1021 (1980), appeal dismissed 51 NY2d 970 (1980).

Whether or not plaintiff was comparatively negligent in this matter, and if so, the extent thereof, remains a question of fact not ripe for summary determination.

Conclusion

For the foregoing reasons, plaintiff's motion for summary judgment is granted as to CVS limited to the issue that CVS both knew and had constructive notice of the ice condition which precipitated plaintiff's accident. Plaintiff's motion for summary judgment as to GSA's liability is denied since there remains an issue of fact whether GSA's inspection regimen should have given GSA notice of the ice condition. GSA's and CVS's respective cross-motions for summary judgment are denied.

The foregoing constitutes the decision and order of this Court. The parties are to appear for a status conference on March 27, 2006 at 9:00 a.m. at the Orange County Government Center, Courtroom No.4.

Dated: March 1, 2006 E N T E R

Goshen, New York

__________________________

HON. LEWIS J. LUBELL,

J.S.C.

TO: