Dunkak v Wartburg Senior Hous., Inc.

[*1] Dunkak v Wartburg Senior Hous., Inc. 2006 NY Slip Op 50932(U) [12 Misc 3d 1156(A)] Decided on May 12, 2006 Supreme Court, Westchester County Smith, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 12, 2006
Supreme Court, Westchester County

HENRY DUNKAK, Plaintiff,

against

WARTBURG SENIOR HOUSING, INC., Defendant.



897/04



O'Connor, McGuinness, Conte, Doyle & Oleson

Attys. For Deft.

One Barker Avenue, Suite 675

White Plains, New York 10601

Tarter Krinsky & Drogin LLP

Attys. For Pltf.

470 Park Avenue South, 14th fl.

New York, New York 10016

Mary H. Smith, J.

This is an action to recover for personal injuries allegedly sustained by plaintiff, presently approximately 100 years old, and a resident of defendant assisted living facility, on August 7, 2003. At approximately 7:00 a.m. on that date, while alone, plaintiff had exited the shower in his apartment and allegedly slipped. This action ensued.

Plaintiff pleads a common law negligence claim and a statutory negligence claim. Plaintiff specifically predicates defendant's common law negligence liability upon its having "failed to place a non-slip mat immediately adjacent to the shower or tub in plaintiff's apartment when defendant knew, or in the exercise of reasonable care should have known that the absence of such a non-slip mat created an unreasonable risk of harm to defendant (sic)." Its failure to have placed the required non-slip mat, plaintiff, pleads, constitutes negligence as well as actual or constructive notice to defendant. [*2]

Plaintiff also pleads a cause of action for an alleged violation of Section 488.11 of the Regulations of the Department of Social Services, promulgated pursuant to Social Services Law Section 461, subdivision 1, which violation, plaintiff contends, constitutes negligence per se.[FN1]

Plaintiff, unfortunately, allegedly suffers from advanced dementia which arose subsequent to the fall in issue, and he allegedly does not remember the circumstances surrounding his fall and medically is unfit to be deposed. However, plaintiff's son and purported representative, Brother Dunkak, was deposed in this matter. He had testified that, at the time of the accident on August 7, 2003, plaintiff had lived at defendant facility for approximately one year. Brother Dunkak had described defendant assisted living facility as a place where the residents "must be able to operate on [their] own." At the time that his father moved into the facility, he did not require a nursing assistant or home health aid, and he did not suffer from any vision or balance problems. Although his father had a cane at that time, it wasn't necessary for him to ambulate with it. To Brother Dunkak's knowledge, his father never previously was prone to falling and he was not aware of any prior falls he may have suffered. Further, Brother Dunkak had testified that:

assisted living means that your meals are provided,

your room is cleaned, your bed is made everyday.

There is a nurse there on duty and at night there

would be an aid and that's what assisted living

means. And if at any time while a resident is there

if that person became incapacitated or unable to

function, you would be asked to leave to go over to

the extended care.

Brother Dunkak also had testified that his father, shortly after his fall, told a fellow resident at breakfast that same [*3]morning that he had slipped while exiting the shower, and that while attempting to get up, he had slipped a second time. This co-resident thereupon immediately notified the on-duty nurse of plaintiff's fall and, after the nurse checked plaintiff, he was transported to the hospital. The following account is substantiated in defendant's incident Report.

After plaintiff returned home from the hospital, at approximately 7:00 p.m., that same day, accompanied by Brother Dunkak and plaintiff's daughter, Brother Dunkak testified that there was no bath mat in his father's bathroom. He had also testified, however, that he never previously had observed a bath mat in his father's bathroom, it had not been something he had looked for. According to Brother Dunkak, providing a bath mat was one of the tasks the cleaning person would do daily. Prior to the accident date, Brother Dunkak was not aware of any complaints his father had with respect to his apartment, including specifically with respect to his bathroom and cleaning. Brother Dunkak also testified that his father never told him how his fall had occurred, that he never said whether he had tripped or slipped, and that his father never had informed him that there was no bath mat in the bathroom.

Beverly Rose, a personal care aid in defendant's employ, also had been deposed. According to Ms. Rose, her job responsibilities were to "assist the residents with their daily care and shower and assist them to the dining room, assist them, undress and getting dressed." When specifically asked whether she was responsible for going into the bathroom and "making sure that everything in the restroom or the shower area is safe and secure for the resident," Ms. Rose replied, "No." Ms. Rose testified that there is a housekeeping staff that cleans the residents' rooms in the morning. According to Ms. Rose, a bath mat is furnished by the facility to each resident and it is "always" left outside the shower.

Ms. Rose had testified that she came on duty at approximately 7:00 p.m., on August 7, 2003, and that she had helped escort plaintiff to his room at that time. According to Ms. Rose's testimony, she never had observed any bathroom not having a mat and she never had a problem with a damaged bath mat. She also never had discussed plaintiff's fall with him because she believed that "privacy rules" prohibited her from doing so. Ms. Rose denies having informed Brother Dunkak that his father had fallen because there was no bath mat and she does not remember having told the facility administrator at the time that plaintiff had [*4]fallen due to the absence of a bath mat.

Notably, no one from defendant's housekeeping staff was apparently deposed.

Defendant is now moving for summary judgment dismissing the complaint, arguing that plaintiff has failed to establish that a bath mat was in fact missing from plaintiff's bathroom on the date in question, and that such was the proximate cause of his slip and fall, and/or that defendant had notice of such allegedly dangerous condition.

Plaintiff opposes the motion, arguing that defendant has failed to prima facie demonstrate entitlement to judgment through its sole reliance upon unsigned deposition transcripts. Even if the submitted unsigned depositions are considered, plaintiff argues that defendant has not established in the first instance its entitlement to judgment by demonstrating that it did not have actual or constructive knowledge of same, particularly where it is claimed that defendant created the dangerous condition and the absence of the bath mat violated the applicable regulation. Plaintiff also points to Brother Dunkak's testimony that Ms. Rose had informed him that his father had fallen due to the absence of a bath mat as evidence supporting plaintiff's claim.

Plaintiff also contends that numerous issues of material fact are raised by the depositions of Brother Dunkak and Ms. Rose, albeit the only issue specifically identified by plaintiff is whether defendant's housekeeping had created the dangerous condition by removing the mat from plaintiff's shower area.

Finally, plaintiff relies upon CPLR 3212, subdivision (f), and argues that "numerous documents" exclusively within defendant's control and not provided to plaintiff "Might also highlight numerous disputed material facts." Plaintiff's counsel states that he had demanded during the course of Ms. Rose's deposition, but never received, a care plan for plaintiff which identified the personal assistance defendant was responsible for providing plaintiff, the Wartburg handbook outlining its operating procedures, defendant's standard operating procedures concerning residents' care and assistance and Ms. Rose's time card records.

It is well-settled that on a motion for summary judgment, the Court is called upon to determine whether a bona fide issue exists. 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. See, e.g., Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1990); Zuckerman v. City of New York, 49 NY2d 557 [*5]562 (1980). Although the papers are carefully scrutinized in the light most favorable to the party opposing the motion, see Robinson v. Strong Memorial Hospital, 98 AD2d 976 (4th Dept. 1983), and summary judgment should not be granted where there is any doubt as to the existence of a triable issue of fact, see Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 (1978), bald, conclusory assertions and the "shadowy semblance of an issue" are insufficient to defeat a summary judgment motion. Ehrlich v. American Moninga Greenhouse Manufacturing Corp., 26 NY2d 255, 259 (1970); see, also, S.J. Capelin Associates v. Globe Mfg. Co., 34 NY2d 338 (1974); Blankman v. Incorporated Village of Sands Point, 249 AD2d 349 (2nd Dept. 1998). Rather, it is incumbent upon a party who opposes a summary judgment motion to "assemble, lay bare and reveal his proofs, in order to show that the matters set up in his [pleading] are real and capable of being established upon a trial." DiSabato v. Soffes, 9 AD2d 297, 301 (1st Dept. 1959), app. dsmd. 11 AD2d 660 (1st Dept. 1960); see, also, S. J. Capelin Associates v. Globe Mfg. Co., supra; Seaman-Andwall Corp. v. Wright Machine Corp., 31 AD2d 136 (1st Dept. 1971), affd. 29 NY2d 617 (1971).

While a negligence cause of action can be predicated wholly upon circumstantial evidence, in such a case the plaintiff must be able to prove that it is "more likely," or "more reasonable," or that it is "logically inferred" that the alleged injury was caused by the defendant's negligence rather than by some other agency. See Collins v. Stateside Construction Corp., 305 AD2d 529, 530 (2nd Dept. 2003); Nigri v. City of New York, 294 AD2d 477, 478 (2nd Dept. 2002); Meckert v. Sears Roebuck & Co., 281 AD2d 402 (2nd Dept. 2001). The law does not require the plaintiff to positively exclude every other possible cause of the claimed injury, but the plaintiff must render those other causes sufficiently remote through the submission of proof. See Gayle v. City of New York, 92 NY2d 936 (1998); O'Connor v. Lakeview Associates, LLC, 306 AD2d 518 (2nd Dept. 2003); Collins v. Stateside Construction Corp., 305 AD2d 529 (2nd Dept. 2003), citing Nigri v. City of New York, supra; Schager v. Midway Shopping Center, 1999 WL 354553 (NY Sup. Ct. 1999).

After this Court's careful review of the record at bar, the foregoing applicable principles of law and the parties' respective arguments, the Court grants defendant's motion. The inescapable fact is that here it cannot be stated that it is "more likely" or "logically inferable" that plaintiff slipped upon exiting the shower due to the absence of a bath mat. The record demonstrates [*6]that no one had witnessed plaintiff's fall, that no one had witnessed the absence of a bath mat in his bathroom at the time or near the time of his fall, that plaintiff himself apparently never had stated to anyone that he had "slipped," he had not complained to anyone that his fall was caused by the absence of a bath mat and there apparently had not been any history of defendant's failing to furnish plaintiff with a bath mat. Given the testimony that housekeeping generally cleaned each person's room starting at about 8:00 a.m., it just as readily can be inferred, and certainly it is not a "remote" possibility, that a mat had been present at the time of plaintiff's shower, but thereafter removed by housekeeping and not yet replaced by 7:00 p.m. that night, and that plaintiff, then 97 years of age, had tripped exiting the shower due to a misstep or a loss of balance. Plaintiff's self-serving, hearsay claim of Brother Dunkak that Ms. Rose, who was not an eyewitness, had informed him that his father fell as a result of a missing bath mat, particularly where Ms. Rose had testified that she did not make any such statement, is wholly insufficient to raise any triable issue of fact.

This Court rejects plaintiff's argument that this motion is premature in that outstanding discovery exists. It is well settled that before a party may resort to CPLR 3212, subdivision (f), he must demonstrate that the proof is within the exclusive knowledge of the moving party, that the opposing claims are supported by something other than mere conjecture, suspicion or surmise, and that the party has at least made some attempt to discover facts at variance with the moving party's proof. See Chemical Bank v. Pic Motors Corp., 50 NY2d 1023, 1026 (1983); Denkensohn v. Davenport, 130 AD2d 860, 861 (3rd Dept. 1987); Rios v. Metropolitan Transportation Authority, 6 Misc 3d 1006(A) (Sup. Ct. 2004).

Here, the four items identified by plaintiff which have allegedly not been furnished cannot interdict an award of judgment to defendant, as there simply is no nexus between the employee handbook, defendant's operating procedures and Ms. Rose's time cards to the dispositive issue of what had caused plaintiff's fall. To the extent that the requested "care plan" relative to plaintiff allegedly has not been furnished, which evidence arguably potentially could support a claim of negligence against defendant if same states that plaintiff was required to have personal assistance while showering, such claim is unavailing to deny defendant judgment. In its replying papers, defendant has submitted a copy of plaintiff's "Initial Case Assessment," done [*7]one year prior to the subject accident, wherein it is stated that plaintiff "is independent ... at this time" and will utilize "laundry and housekeeping services."[FN2] This assessment is in accord with Brother Dunkak's testimony regarding his father's abilities and or lack of limitations at the time of his accident.

The Court also rejects plaintiff's claim that defendant has not properly supported its motion with signed depositions. See Olan v. Farrell Lines Inc., 64 NY2d 1092 (1985); Finnegan v. Staten Island Rapid Transit Operating Authority, 251 AD2d 539 (2nd Dept. 1998). Moreover, the record amply demonstrates that the deposed parties had been requested to review and sign their respective deposition transcripts. See CPLR 3116, subd. (a).

Finally, while this Court fails to discern any Noseworthy argument having been proffered in plaintiff's Memorandum of Law, as claimed by defendant, Noseworthy consideration and its concomitant lessening of plaintiff's burden is not warranted in the matter at bar because this Court cannot conclude that defendant is in exclusive control of the facts and unfairly benefitted by plaintiff's inability to have testified during the discovery phase, which is the underlying purpose for Noseworthy consideration. See Orloski v. McCarthy, 274 AD2d 633, 634 (3rd Dept. 2000); Wright v. New York City Housing Authority, 208 AD2d 327, 332 (1st Dept. 1995). There simply is no eyewitness other than plaintiff, and thus both parties equally are disadvantaged by this circumstance and in their knowledge of what caused plaintiff's fall. See Kuravskaya v. Samjo Realty Corp., 281 AD2d 518 (2nd Dept. 2001), lv. to app. den. 96 NY2d 716 (2001).

Since plaintiff is unable to proffer any evidence that a bath mat was not present in plaintiff's bathroom at the time of his fall, not only does plaintiff's common law negligence claim fail, but his claim predicated upon regulation violations which require the presence of a non-slip bath mat also must fail.

This action is hereby dismissed.

Dated: May 12, 2006

White Plains, New York [*8]

_________________________________

MARY H. SMITH

J.S.C. Footnotes

Footnote 1:18 N.Y.C.R.R. 488.11, subdivision (e), paragraph (12), applicable to Enriched Housing for Adults, provides that "The floor area immediately adjacent to a shower or tub must have a nonslip mat." Similarly, 18 N.Y.C.R.R. 490.11, subdivision (i), paragraph (10), which is applicable to Residences for Adults, provides that "The floor area immediately adjacent to a shower or tub must have a nonslip surface or a nonslip mat." Contrary to plaintiff's complaint, a violation of a safety regulation, such as these, do not constitute per se negligence, but rather only constitute evidence of negligence. See PJI 2:29; Cruz v. Long Island Rail Road Co., 22 AD3d 451, 453 (2nd Dept. 2005), lv. to app. den, 6 NY3d 703 (2006).

Footnote 2:The Court is not in receipt of any sur-reply, or letter from plaintiff requesting permission for the submission of same, based upon plaintiff's not having previously received during discovery a copy of this "Initial Case Assessment."