Dickey v 7-Eleven, Inc.
Annotate this CaseDecided on June 29, 2006
Supreme Court, Suffolk County
Joan Dickey, Plaintiff,
against
7-Eleven, Inc., and Maplecrest Associates, Inc., Defendants.
5660-03
Attorney for Plaintiff
Riconda & Garnett, LLP
753 W. Merrick Road
Valley Stream, NY 11580
Attorneys for defendant
Congdon Flaherty O'Callaghan Reid
333 Earle Ovington Blvd., Suite 502
Uniondale, NY 11553-3625
Denise F. Molia, J.
Notice of Motion dated February 13, 2006; Affirmation dated February 13, 2006; Exhibits A through L annexed thereto; Affirmation in Opposition dated April 20, 2006; Reply Affirmation dated April 28, 2006; Exhibit A annexed thereto; Defendants' Memorandum of Law; and upon due deliberation; it is [*2]
ORDERED, that the motion by defendants, pursuant to CPLR 3212, for an Order directing the entry of summary judgment in favor of defendants and dismissing the complaint, is granted .
The plaintiff initially commenced this action solely against 7-Eleven, Inc., by the filing of a summons and complaint which alleged that the plaintiff was injured as a result of an incident which occurred on October 20, 2002, while she was on the premises located at 1540 Montauk Highway, Oakdale, New York, the location of a 7-Eleven store. Thereafter, the complaint was amended to add the property owner, Maplecrest Associates, Inc., as a defendant. Within her bill of particulars, the plaintiff alleges, in pertinent part, that the defendants were negligent "in failing to remove a tray that had remained in the parking lot" of the subject premises.
In her deposition, the plaintiff stated that when she stepped off a curb onto the surface of the parking area adjacent to the 7-Eleven store, "I - - I landed on something that made me fly out into the - - into the parking lot." She later stated that the item that she landed on was a tray, similar to cafeteria serving trays. The plaintiff further testified that she had no knowledge of how long the tray had been on the parking lot surface prior to her accident, that she did not know of anyone else who might have such knowledge, that she did not know how the tray came to be on the surface of the parking lot, that she had not seen or complained about the tray prior to her accident and had no knowledge of anyone else who might have made a complaint.
At the deposition of Jim Dale, 7-Eleven's Division Loss Prevention Manager, the deponent testified that 7-Eleven did not operate the store located at the subject premises. Rather, the business was operated by Roy Anderson, pursuant to a franchise agreement with 7-Eleven. According to the franchise agreement, Anderson is an independent contractor, and as a franchisee would be responsible for the maintenance of the premises, including the cleanliness of the surface of the parking area. Dale also testified as to his familiarity with products sold by 7-Eleven stores on that date of the accident, and that such stores did not sell or use any trays, such as indicated by the plaintiff, on their properties. Dale further testified that no employee of 7-Eleven placed a tray in the subject parking lot prior to the accident, had knowledge concerning the existence of the tray, or received any prior complaints concerning same or any reports of prior, similar accidents at the subject premises.
John M. Amato, secretary of the defendant, Maplecrest Associates, Inc., testified during his deposition that Maplecrest was the owner of the subject property, serving as the landlord of the premises, without responsibility for the maintenance or management of the subject store or the exterior parking lot. Amato categorized Maplecrest as an out-of-possession landlord. He further testified that no employee of Maplecrest placed any tray in the subject parking lot prior to plaintiff's accident, had any knowledge of the tray's existence prior to the accident, had ever received prior complaints concerning the existence of the tray, or any received reports of any prior, similar accidents at the subject premises.
Roy Anderson testified that he was the franchisee of the subject 7-Eleven store and was [*3]responsible for the inspection and maintenance of the subject parking lot, instructing his employees to continually observe the cleanliness of the parking area. He stated that one of his employees conducted an inspection of the parking area approximately fifteen to twenty minutes prior to the time of plaintiff's accident. Anderson also testified that at no time were trays similar to that on which plaintiff purported slipped and fell used or sold at his store. He further testified that none of his employees placed the subject tray in the parking lot prior to the plaintiff's accident, that neither he or any of his employees had knowledge concerning the existence of the subject tray , nor did he or any employee receive prior complaints concerning the tray or any reports of prior, similar accidents that had occurred at the subject premises.
It is well settled that a property owner and/or possessor of real property has a duty to exercise reasonable care to keep the premises in a safe condition (see, Demas v. E & R Quilting Corp., 111 AD2d 898, 490 NYS2d 802; Thacheray v. Novak, 124 AD2d 946, 508 NYS2d 692). Before a party can be held liable for a dangerous condition on its property, the plaintiff must prove that the defendant created the alleged dangerous condition or had actual or constructive notice of the condition for a period of time, such that, in the exercise of reasonable care, the condition should have been remedied. See, Rivera v. 2160 Realty Co., 4 NY3d 837, 797 NYS2d 369. 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 the defendant's employees to discover and remedy it." Gordon v. American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 at 647 See also, Anderson v. Central Valley Realty Company, 300 AD2d 422, 751 NYS2d 586; Goberdhan v. Waldbaum's Supermarket, 295 AD2d 564, 745 NYS2d 46; Lynch v. Middle Country Central School District, 283 AD2d 404, 724 NYS2d 8; McDuffie v. Fleet Financial Group, Inc. 269 AD2d 575, 703 NYS2d 510; Maguire v. Southland Corporation, 245 AD2d 347, 665 NYS2d 680.
The plaintiff's opposition to the motion asserts that there are triable issues of fact as to whether (a) the defendants owned, operated, occupied, or controlled the premises to a degree warranting a determination of liability for the hazardous condition of said premises and (b) the defendants had a duty to the plaintiff to maintain the parking lot of the subject premises in a safe, non-defective condition.
In considering a motion for summary judgment, the moving party must demonstrate, by evidencing facts, that he/she is entitled to judgment as a matter of law, whereupon the burden is then shifted to the opponent to show that an issue of fact exists. Piccolo v. DeCarlo, 90 AD2d 609, 456 NYS2d 171. "[T]he test on a motion for summary judgment is whether there are issues of fact properly to be resolved by the jury." Hartford Accident & Indemnity Co. v. Wesolowski, 33 NY2d 169, 172, 350 NYS2d 895, 898. Real factual issues must be present as "the shadowy semblance of an issue of fact is not sufficient...to defeat a motion for summary judgment." Manufacturers and Traders Trust Company v. Barry Warehouse, Inc., 49 AD2d 320, 321, 374 NYS2d 514, 516. Here, both defendants have demonstrated their entitlement to summary judgment and the plaintiff has been unable to meet her burden of demonstrating the existence of any questions of fact. [*4]
In the matter at bar, there is no evidence to demonstrate that either defendant had actual notice of the alleged dangerous condition. The plaintiff testified that her accident occurred approximately ten minutes after her arrival at the subject premises and that at no time prior to her accident had she seen the tray that allegedly caused her to slip and fall. She specifically testified that she had no knowledge as to how long the tray had been on the parking lot surface prior to the accident; knew of no complaints that had been made to anyone concerning the presence of the tray; and did not know how the tray came to be on the surface of the parking area. No evidence has been adduced to contradict the testimony of either defendant that they had neither actual or constructive notice of the alleged dangerous condition.
Neither has the plaintiff been successful in disputing the claims of defendant Maplecrest that it is an out-of-possession landlord, with no responsibility, contractual or otherwise, for the maintenance or inspection of the subject premises. Accordingly, Maplecrest owed no duty to remedy the condition of which the plaintiff complains. See, D'Orlando v. Port Auth. of NY & N.J., 250 AD2d 805, 674 NYS2d 382; Donohue v. S.R.O. Café, Inc., 300 AD2d 433, 750 NYS2d 882. In the absence of issues of fact regarding the negligence of defendants or a duty owed by them to the plaintiff, the defendants are entitled to summary judgment.
The foregoing constitutes the Order of this Court.
Dated: June 29, 2006_____________________________
HON. DENISE F. MOLIA, JSC
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