Alvarez v Waldbaum Inc.

[*1] Alvarez v Waldbaum Inc. 2009 NY Slip Op 52474(U) [25 Misc 3d 1237(A)] Decided on December 4, 2009 Supreme Court, Richmond County Minardo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 4, 2009
Supreme Court, Richmond County

Claudia Alvarez, Plaintiff,

against

Waldbaum Inc. and ARCTIC GLACIER INC., Defendants.



104306/07

Philip G. Minardo, J.

Upon the foregoing papers, the motion and cross motion for summary judgment are denied.

This action arises out of a slip and fall, allegedly causing plaintiff to sustain personal injuries while shopping on the premises of a supermarket owned by defendant Waldbaum Inc. (hereinafter "Waldbaum"). Insofar as it appears, the accident occurred as the result of plaintiff's falling into a puddle of water emanating from the base of a freezer unit owned by defendant Arctic Glacier Inc. (hereinafter "Arctic"), which was located in the frozen foods aisle.

To the extent relevant, on the date of the subject accident, plaintiff and her mother had been shopping at defendant's supermarket for approximately 1 ½ hours prior to their entry into the frozen food aisle (EBT of Plaintiff, p 95), when plaintiff "felt [her] foot slide forward" and fell (id. at 107-113). Plaintiff claims that she "landed square on the ground, [and] dislocated [her] knee". Also injured was the "whole right side of [her] body" including her right hip, shoulder, knee, ankle and foot when they came in contact with the ground (id. at 113-114). According to plaintiff, when she "hit the ground, [her] hair was in water, some of [her] clothing was wet [, but i]t didn't smell, [and] it wasn't sticky" (id. at 119-120). In fact, it felt a lot like water. After she fell, she "saw water to [her] right... but knew there was [also] water underneath [her]" (id. at 123). Plaintiff did not see the water prior to her fall (id.). Plaintiff described the fluid as "clear, non-odorous, [and] non-sticky", for when she " put [her] hand in the water... [and] picked it up... the water was [just] dripping down [her] hand" (id. at 125-126). Plaintiff believed that the water was coming from the direction of the refrigeration units in the aisle (id. at 132), but was uncertain as to which specific unit was leaking (id. at 137, 140).

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 (see Roy v. City of New York, 65 AD3d 1030 [2nd Dept 2009]; Marino v. Stop & Shop Supermarket Co, 21 AD3d 531, 532 [2nd Dept 2005]). To provide constructive notice, a defect must be visible and apparent, and must exist for a sufficient length of time prior to the accident to permit its discovery by defendant and a cure (see Kohout v. Molloy College, 61 AD3d 640, 642 [2nd Dept 2009]). Nevertheless, a party who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific recurrence thereof (see Kohout v. Molloy College, 61 AD3d at 642).

On behalf of Waldbaum, its co-manager was able to verify that the "condition of the area at [the] time of investigation" had "water on [the] floor" which he believed came from "[b]ags of ice" (EBT of Robert Czwartachi, pp 49-50). He admitted that a wet floor sign was utilized in the [*2]aisle where plaintiff's accident occurred, but when queried further stated that the problem caused by difficulties with the refrigeration units "[p]ossibly" started two weeks earlier (id. at 19-22). Testifying on behalf of Waldbaum, the store manager denied knowledge of any prior problems with the operation of the particular unit cited by plaintiff, i.e., an Arctic Ice Machine Unit (EBT of Jack Minarovich, p 12), but stated that Arctic was responsible for the maintenance, cleaning and repair of said unit (id. at 39).

Arctic's plant engineer acknowledged that it owned, maintained and was responsible for repairs for the subject freezer unit (EBT of Frantz Saieh, pp 18-20), and displayed a repair ticket stating that on November 8, 2004 he made repairs to such a unit, to "clean [out the] condenser" at Waldbaum's location (id. at 65-66, 74). Other than this date (which occurred nearly two years earlier), the witness did not recall making any repairs at the subject Waldbaum's location (id. at 62-63, 75).

In addition, it is undisputed that Waldbaum's procedure was to contact Arctic if there was a problem with the freezer units (id. at 19-20, 57; EBT of Jack Minarovich, p 47-48), but that if an Arctic delivery person noticed something wrong with the unit in terms of its function or operation, he would promptly notify the Arctic office of the malfunction and the unit would be repaired the same day (EBT of Frantz Saieh, pp 57-58).

On a motion for summary judgment to dismiss the complaint based upon lack of notice, the defendant is required to make a prima facie showing affirmatively establishing the absence of notice as a matter of law (see Grant v. Radamar Meat, 294 AD2d 398 [2nd Dept 2002]; Goldman v. Waldbaum, Inc., 248 AD2d 436 [2nd Dept 1998]). While plaintiff's deposition testimony that the water which allegedly caused her to fall was "clear, non-odorous [and] non-sticky" weakens her theory that it collected over a sufficient period of time to give constructive notice to defendants (see generally Perez v. Walgreen Co., 56 AD3d at 634; Nearchou v. Broadway Mall Prop, Inc., 270 AD2d 468 [2nd Dept 2000]), Waldbaum's submissions nevertheless failed to eliminate all triable issues of fact as to whether it could be charged with notice of a recurrent condition, i.e. the store manager had prior knowledge of "possible" leaks from the freezer and the placement of a "wet floor" sign in the immediate vicinity. Contrariwise, co-defendant Arctic has sustained its initial burden of demonstrating that it did not have actual or constructive notice of the alleged defective condition which allegedly caused plaintiff to fall by submitting evidentiary proof which included, inter alia, the deposition testimony of plaintiff herself, the manager and co-manager of the supermarket, and its own plant engineer (see Addolorato v. Waldbaums, 57 AD3d 592 [2nd Dept 2008]; Perez v. Walgreen Co., 56 AD3d 634 [2nd Dept 2008]; cf. Kohout v. Molloy College, 61 AD3d at 642; Naletilic v. Dan's Key Food, 47 AD3d 903 [2nd Dept 2008]; Field v. Waldbaum, Inc., 35 AD3d 652 [2nd Dept 2006]). Therefore as to Arctic, the burden shifted to the plaintiff to demonstrate the existence of a triable issue of fact as to whether this defendant either created the condition which caused the accident, or was notified or had actual or constructive notice of it (see Grant v. Radamar Meat, 294 AD2d at 398).

In opposition, plaintiff refers to the deposition testimony of the Waldbaum's store manager, who stated that fifteen wet floor signs are regularly used throughout the store (EBT of Robert Czwartachi, pp 17-18, 21). Thus, plaintiff contends that defendant Waldbaum was aware of the leaking freezer unit evidenced by the placement of a wet floor sign adjacent to the freezer unit. (Affidavit of Denise Garaventa-Alvarez).

However, defendant's general awareness that a slippery condition may occasionally present itself in the frozen foods aisle is insufficient to raise a triable issue of fact as to whether said defendant had adequate notice of the specific condition which caused plaintiff to fall (see Onley v. Shopwell, Inc., 16 AD3d 565 [2nd Dept 2005]; Berzon v. D'Agostino Supermarkets, Inc., 15 AD3d 600 [2nd Dept 2005]; Sosa v. Golub Corp, 273 AD2d 762, 764 [3rd Dept 2000]).

In any event, plaintiff has also submitted an expert affidavit by a professional engineer, Stanley Fein, who opined that "water would drip down the front wall of the unit around the door in increasing amounts and puddle on the floor in the aisle in the area of the unit, since there was no drainage system, condensation tray, drip pan or other means provided to capture the water and keep [*3]it from reaching the floor of the aisle" (Affidavit of Stanley Fein P.E., para 10). Moreover, the expert found extensive water staining directly beneath the door along the tile flooring in front of the subject unit, and opined that "[s]uch staining does not take place on a heavy duty commercial grade vinyl asbestos tile floor unless the floor has been exposed to dripping and/or standing water for at least several years" (id. at 11). Thus, plaintiff's expert opined, in effect, (1) that the subject freezer was not being maintained in accordance with good and accepted building maintenance and safety standards; (2) that it was not good and acceptable practice for defendants to remove accumulated ice from the interior of said unit only once a year and, in this case, defendant Arctic's records indicate the last repair was done almost two (2) years prior; and (3) that plaintiff's accident and injuries were proximately caused by defendants' failure to comply with these standards (id. at 13). In addition, since all these findings were grounded upon the expert's inspection of the subject Arctic ice unit in addition to his review of (a) the deposition transcripts, (b) photographs of the accident scene, (c)the affidavits of plaintiff and plaintiff's mother, and (d) the deposition testimony of Waldbaum's co-manager to the effect that the subject unit was defrosted only once a year (EBT of Robert Czwartachi, p 35), however, defendant Arctic's records indicate an almost two (2) year lapse; the expert's affidavit is sufficient to establish the existence of an issue of fact as to whether either defendant is chargeable with at least, e.g., constructive notice of the alleged defect and/or negligent maintenance (cf. Kasner v. Pathmark Stores, Inc., 18 AD3d 440 [2nd Dept 2005]); that there are other triable issues as to whether, inter alia, the puddle caused by the freezer unit had existed for a sufficient length of time before the accident to permit Waldbaum to discover and remedy the condition, especially if this was a recurring condition (see Bonilla v. Western Beef Inc, 272 AD2d 487 [2nd Dept 2000], and among other things, the adequacy of Arctic's service regimen.

Accordingly, it is

ORDERED that defendants' motions for summary judgment are denied.

ENTER,

/s/ Philip G. MinardoJ.S.C.

DATED: December 4, 2009