Germain v Rite Aid of NY, Inc.

[*1] Germain v Rite Aid of NY, Inc. 2009 NY Slip Op 50800(U) [23 Misc 3d 1117(A)] Decided on April 22, 2009 Supreme Court, Kings County Kramer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 22, 2009
Supreme Court, Kings County

Scheila Germain, Plaintiff,

against

Rite Aid of New York, Inc., Defendants.



16692/07



Plaintiff was represented by Louis C. Fiabane, Esq., 947 Second Ave., NY, NY 10022.

Defendants were represented by Raven & Kolbe, LLP, 126 E. 56th St., NY, NY 10022.

Herbert Kramer, J.

Upon the foregoing papers in this personal injury action, defendants Rite-Aid of New York, Inc., and Rite Aid Corporation (collectively, Rite Aid) move, pursuant to CPLR 3211, 3212, for an order granting summary judgment, and complete dismissal of plaintiff's complaint. In the alternative, Rite Aid seeks an order granting partial summary judgment dismissing plaintiff's claim that the underlying slip and fall accident caused plaintiff's subsequent miscarriage.

This action arises out of plaintiff Scheila Germain's January 20, 2006 slip and fall accident that occurred inside the moving defendants' pharmacy/store located at 1791 Utica Avenue in Brooklyn, New York. According to plaintiff, she entered the store at approximately 8:00 PM on the day in question in order to purchase various household items. Ten minutes after entering the store, plaintiff proceeded to an area identified as aisle 14 where she picked up a container of air freshener from the shelves and walked back down the aisle toward the rear of the store. After taking approximately 10 steps, plaintiff slipped and fell to the floor. After falling, plaintiff noticed a blue-colored liquid on the floor that had leaked from a bottle of laundry detergent on the shelf in aisle 14. Plaintiff testified that she did not notice the liquid prior to her fall.

Shortly after the accident, the store manager, Christine Bartley, proceeded to aisle 14 after an unidentified customer indicated that someone had fallen. Upon arriving at the aisle, Ms. Bartley observed plaintiff lying on the floor toward the back end of the aisle. Ms. Bartley further observed a small puddle of laundry detergent on the floor measuring [*2]approximately three inches in diameter. Ms. Bartley determined that the detergent came from a plastic bottle of Tide on the shelf in aisle 14. Specifically, Ms. Bartley testified that although the cap on the bottle was closed and there were no holes in the container, some detergent was "running from the head of it coming straight down."

Following the accident, plaintiff was taken by ambulance to Kings County Hospital Center (KCHC) complaining of back, neck, and abdominal pain. In addition, plaintiff, who was 13 weeks pregnant at the time of the accident, testified that she experienced vaginal bleeding immediately after she fell. At the hospital, a pelvic examination and ultrasound examination were performed which indicated a closed cervix, no abdominal tenderness or vaginal bleeding, a uterus 10 weeks in size with "viable IUP +FHR" (i.e., viable intrauterine pregnancy and positive fetal heart rate). Thereafter, plaintiff was discharged from the hospital.

On February 4, 2006, two weeks after the accident, plaintiff was re-admitted to KCHC complaining of heavy vaginal bleeding for the past five hours. Plaintiff further provided a history of spotting for the past two weeks. On examination it was determined that plaintiff had suffered a miscarriage.[FN1]

By summons and complaint dated May 9, 2007, plaintiff commenced the instant personal injury action against Rite Aid. The complaint alleges that Rite Aid was negligent in creating and/or failing to remedy the dangerous condition presented by detergent on the floor of the store. The complaint further alleges that this negligence caused plaintiff to slip and fall. In a subsequent bill of particulars, plaintiff alleged that she sustained various injuries as a result of the accident including a miscarriage. Discovery is now complete and the instant summary judgment motion is before the court.

In support of its motion dismissing the complaint, Rite Aid maintains that there is no evidence that it created the spill that caused plaintiff to slip and fall, or that it had actual or constructive notice of this condition prior to the accident. Specifically, Rite Aid notes that Ms. Bartley testified that no customers complained of detergent on the floor in aisle 14 prior to the accident and that neither she, nor the Rite Aid employees working in the store on the evening in question saw any such detergent. In addition, Rite Aid points out that plaintiff has failed to offer any evidence which indicates that the laundry detergent was on the floor for a sufficient period of time before the accident to establish that Rite Aid had constructive notice of the condition.

In support of its alternative argument that plaintiff's claim must be dismissed to the extent that she alleges that the accident caused her miscarriage two weeks after the accident, Rite Aid submits a sworn expert affidavit by Adiel Fleischer, M.D., a physician licensed to practice medicine in the state of New York and certified by the American Board of Obstetrics and Gynecology. Based upon his review of plaintiff's KCHC medical records, Dr. Fleischer [*3]concludes "within a reasonable degree of medical certainty" that plaintiff's fall on January 20, 2006 did not cause her spontaneous abortion/miscarriage on February 4, 2006. In particular, Dr. Fleischer notes that the pelvic exam and ultrasound exam performed at KCHC on January 20, 2006 found "the cervix was closed, the Uterus was 10 weeks in size without tenderness, Sonogram viable IUP +FHR; no abdominal tenderness; no vaginal bleeding." According to Dr. Fleischer, these test results are inconsistent with pregnancy loss or early delivery caused by the type of alleged trauma involved in this case, which is referred to as "abruptio placenta." In this regard, Dr. Fleischer maintains that "it is extremely unusual to have an abruptio placenta secondary to trauma at this early gestational age." In addition, Dr. Fleischer avers that the above stated pelvic and ultrasound test results "did not identify any signs suggestive of an abruptio placenta." Finally, Dr. Fleischer states that plaintiff "would definitely not have carried the pregnancy through February 4, 2006 if there were a placenta separation from the alleged trauma on January 20, 2006."

In opposition to Rite Aid's motion, plaintiff argues that Rite Aid has failed to satisfy its initial burden of proof in seeking summary judgment dismissing the complaint. In particular, plaintiff maintains that Rite Aid has failed to introduce any evidence which establishes when it last inspected or cleaned the area where the accident occurred so as to demonstrate that it lacked constructive notice of the condition. In this regard, although Ms. Bartley testified that she walked past aisle 14 five minutes before the accident, she admitted that she did not walk down the aisle. Plaintiff further maintains that there are issues of fact as to whether Rite Aid employees created the dangerous condition, which obviates the need to demonstrate notice.

In opposition to that branch of Rite Aid's motion which seeks dismissal of plaintiff's claim that the accident caused her miscarriage, plaintiff submits a sworn expert affidavit by Irving Friedman, M.D., a physician licensed to practice medicine in New York State. Based upon his review of the medical records and plaintiff's deposition testimony, Dr. Friedman concludes "within a reasonable degree of medical certainty, that [plaintiff] was caused to sustain vaginal bleeding and a post-traumatic spontaneous abortion/miscarriage as a result of the slip and fall on January 20, 2006." In support of this conclusion, Dr. Friedman points to evidence indicating that plaintiff "began to experience vaginal bleeding immediately after her fall and thereafter continued to experience spotting and vaginal bleeding for the next two weeks."

In reply to plaintiff's opposition papers, Rite Aid maintains that there is no evidence that it caused the subject spill in aisle 14 and any finding that it did would be purely speculative. In addition, Rite Aid argues that there is evidence that it lacked constructive notice of the condition in aisle 14 given Ms. Bartley's testimony that she asked Rite Aid employee Noelle Cuthbert, who had been working in the aisle prior to the incident, whether there was a spill in the aisle and he replied that there was no spill. Finally, with respect to the miscarriage issue, Rite Aid notes that Dr. Friedman's affidavit completely fails to mention his specialty, areas of practice or qualifications. Rite Aid also submits a copy of the New [*4]York State Department of Health's Physician Profile which indicates that Dr. Friedman is a neurologist and psychiatrist. Under the circumstances, Rite Aid maintains that Dr. Friedman's affidavit is of no probative value since there is no evidence that he possesses the requisite knowledge or experience regarding the diagnosis and treatment of a separated placenta and miscarriage.

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (Totten v Cumberland Farms, Inc., 57 AD3d 653, 654 [2008]; Birnbaum v New York Racing Assoc., Inc., 57 AD3d 598 [2008]). A moving defendant may not meet this burden "merely by pointing out gaps in the plaintiffs's case" (Totten at 654). Thus, with respect to the issue of constructive notice, a successful moving defendant must do more than point to a lack of evidence regarding how long the slippery condition was present prior to the accident. Rather, the defendant must introduce evidence as to when the area in question was last cleaned or inspected relative to the time of the accident (Taylor v Rochdale Vil., Inc., __AD3d__, 2009 NY Slip Op 02350 [2d Dept 2009]; Bruk v Razag, Inc., __AD3d__, 2009 NY Slip Op 01763 [2d Dept 2009]; Totten, 57 AD3d at 654; Birnbaum, 57 AD3d at 598-599).

Here, Rite Aid has failed to produce any admissible evidence which indicates when aisle 14 was last cleaned or inspected prior to the accident. In this regard, although Ms. Bartley testified that she walked past the aisle five minutes before the accident; she admitted that she did not actually walk down the aisle. Furthermore, the statement that Ms. Bartley attributed to Noelle Cuthbert to the effect that there was no spill in the aisle when he was working there prior to the accident constitutes inadmissible hearsay evidence which is insufficient to support a summary judgment motion (Kramer v Oil Servs., Inc., 56 AD3d 730 [2008]).

Accordingly, Rite Aid's motion for summary judgment dismissing plaintiff's complaint is denied inasmuch as Rite Aid has failed to satisfy its prima facie burden that it lacked constructive notice of the spilled laundry detergent in aisle 14.

Turning to that branch of Rite Aid's motion which seeks dismissal of plaintiff's claim that the accident caused her miscarriage, the court finds that Rite Aid has made a prima facie showing that the January 20, 2006 accident did not proximately cause plaintiff's miscarriage on February 4, 2006. In particular, Rite Aid has submitted evidence in the form of Dr. Fleischer's expert affidavit which indicates that although trauma-induced miscarriages can occur as a result of placental separation, such occurrences are extremely rare at an early gestational age like in the instant case. More to the point, Dr. Fleischer's affidavit indicates that results of the pelvic and ultrasound examinations performed upon plaintiff shortly after the accident are inconsistent with a placental separation. Finally, Dr. Fleischer's affidavit states that had a placental separation occurred as a result of the January 20, 2006 accident, plaintiff would not have carried her pregnancy for an additional two weeks. Under the [*5]circumstances, the burden shifts to plaintiff to raise a triable issue of fact regarding the issue of whether the slip and fall accident caused her miscarriage.

Plaintiff has failed to meet this burden. The only opposition plaintiff has submitted to this branch of defendant's motion consists of Dr. Friedman's above noted affidavit. Although Dr. Friedman's affidavit gives no indication of his area of medical expertise, Rite Aid has submitted evidence (which plaintiff does not dispute) which indicates that Dr. Friedman specializes in neurology and/or psychiatry. Moreover, Dr. Friedman's affidavit fails to provide any foundation for his opinions regarding the cause of plaintiff's miscarriage. It is well-settled that an affidavit by a physician which contains opinions outside his or her area of expertise and which is devoid of any statement which would otherwise provide a foundation for the opinion, is of no probative value (Geffner v North Shore Univ. Hosp., 57 AD3d 839, 842 [2008]; Glazer v Choong-Hee Lee, 51 AD3d 970, 971 [2008]).

In any event, Dr. Friedman's affidavit is conclusory. Specifically, the affidavit fails to offer any medical explanation as to how the accident could have caused plaintiff's miscarriage after the passage of two weeks when a pelvic and ultrasound examination performed immediately after the accident revealed a closed cervix, no vaginal bleeding, a viable intrauterine pregnancy, and positive fetal heart rate.

Accordingly, that branch of Rite Aid's motion for summary judgment dismissing plaintiff's entire complaint is denied. That branch of Rite Aid's motion which seeks dismissal of plaintiff's claim that the accident caused her miscarriage is granted.

This constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:On February 10, 2006 plaintiff returned to KCHC again complaining of heavy vaginal bleeding. Thereafter, a dilation and curettage was performed.