Mack v New York Yankees Partnership

[*1] Mack v New York Yankees Partnership 2009 NY Slip Op 52770(U) [27 Misc 3d 1231(A)] Decided on February 20, 2009 Supreme Court, Bronx County Hunter, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 20, 2009
Supreme Court, Bronx County

William Mack, Plaintiffs,

against

New York Yankees Partnership, Defendant.



6098/07



Counsel for Plaintiff: Leicia Grant, Esq. of Hodges, Walsh & Slater

Counsel for Defendant: Andrew B. Kaufman, Esq. of Gordon & Silber

Alexander W. Hunter, J.

The motion by defendant for summary judgment dismissing plaintiff's complaint, is granted. The cross-motion by plaintiff for summary judgment on the issue of liability is denied.

The cause of action is for personal injuries sustained by the plaintiff on May 26, 2006 when he slipped and fell on wet escalator steps as he and his friend were leaving Yankee Stadium towards the end of a game during a rain delay.

Defendant argues that summary judgment should be granted in its favor because there is no evidence of a dangerous condition which proximately caused plaintiff's accident. Defendant asserts that the only basis plaintiff offers for the inference that a dangerous condition existed on the escalator step upon which he fell is that it was raining outside and wind was blowing rain into portions of the stadium. Defendant refers to the deposition testimony of the plaintiff wherein he stated that he did not remember if he saw wetness on the step prior to when he fell nor did he remember if he saw any wetness on the step after he fell. In addition, defendant refers to the deposition testimony of Veronica King, plaintiff's friend who was with him the night of his accident. At her deposition, Ms. King testified that she never spoke to the plaintiff about what caused him to fall. She further testified that the rain was coming into the stadium and the floors were wet in the upper concourse of the stadium when they came out of the loge section.

Defendant further argues that two individuals who were working at Yankee Stadium on the evening of plaintiff's accident, Adam Arce and Israel Del Rio, testified at their depositions that an investigation conducted after the accident indicated that there was no foreign substance or [*2]wetness found on any of the escalators in the area where plaintiff fell. Therefore, defendant contends that plaintiff's argument that wetness on the escalators was the proximate cause of his fall, is based on pure speculation.

Defendant also argues that summary judgment should be granted in its favor because defendant did not create the dangerous condition on the escalator nor did it have actual or constructive notice of same. Defendant contends that even assuming that the escalator step was wet, such condition is insufficient to impose liability on the defendant because a general awareness that a dangerous condition may be present is legally insufficient to constitute notice. Defendant points out that neither the plaintiff nor Ms. King made any complaints regarding the condition of the escalators and Mr. Del Rio, Ms. King and the plaintiff testified that they were unaware of any other persons slipping, tripping or falling on the escalators where plaintiff fell. Mr. Del Rio also testified that along the escalators that lead from the main level to the field or street level, there are no windows and he was not aware of said escalators ever being wet in the past. (Defendant's Exhibit G). Moreover, defendant contends that Ms. King did not see anything on the escalator steps even though she was descending them directly in front of the plaintiff and she saw no rain coming in by the escalators. (Defendant's Exhibit E).

Defendant also submits an affidavit from an expert, Anthony Storace, an engineer, who examined the escalator where plaintiff fell. Mr. Storace opined that the steps on the escalator were uniform and exceed the standard for the coefficient of friction for slip resistance in the dry and wet mode. Therefore, he concludes that the steps were "reasonably safe" and not the proximate cause of plaintiff's fall. (Defendant Exhibit L). Accordingly, defendant contends that plaintiff's complaint must be dismissed.

Plaintiff opposes the motion by defendant and cross-moves for summary judgment on the issue of liability. Plaintiff argues that at the time of plaintiff's fall, the escalator was in a stopped position and was being used by invitees as a staircase. Plaintiff asserts that it is undisputed that the escalator upon which plaintiff fell was metal. Plaintiff contends that there were no warning signs posted at the escalators warning invitees that the steps were slippery when wet in the same manner that they were posted on the cement ramps which was the other means of egress used by invitees. Plaintiff argues that defendant owed a duty to the plaintiff as an invitee to maintain the premises in a reasonably safe condition. Moreover, plaintiff contends that defendant had notice of the dangerous condition but took no steps to warn the plaintiff of such condition or remedy the dangerous condition. Therefore, defendant is liable.

Plaintiff argues that a defendant who has actual knowledge of a recurring dangerous condition can be charged with constructive notice of each specific re-occurrence of that condition. Plaintiff refers to the deposition testimony of Mr. Arce wherein he stated that there were other incidents at Yankee Stadium where someone slipped because of liquids on the escalators. Moreover, plaintiff refers to the deposition testimony of Mr. Del Rio wherein he stated that there are wet conditions at Yankee Stadium when it rains. Plaintiff's counsel argues that defendant had constructive notice that the subject escalator would become wet as a result of [*3]rain being blown onto it and /or by rain dripping off of "the almost 50,000 invitees and their umbrellas onto the subject escalator." (Grant Aff., para. 23).

Next plaintiff argues that defendant knew that rainwater causes metal escalators to become slippery but took no steps to maintain the escalator where plaintiff slipped and fell, in a reasonably safe condition by warning the invitees of a dangerous condition. Moreover, plaintiff contends that despite the fact that defendant knew it was raining heavily outside, it permitted the escalators to remain in an "off" position so that they could be used as staircases. Plaintiff's counsel also refers to plaintiff's deposition testimony wherein he testified that the metal escalator steps were wet due to the rain. (Mack Transcript, Defendant's Exhibit D, p. 40 and 50) and further that the wind was blowing rain into the stadium by the escalators (Mack Transcript, Defendant's Exhibit D, p. 41).

Plaintiff also argues that defendant was in violation of NYC Building code §27-378, by permitting the escalator to be used as an exit while it is in the "off" position. Plaintiff submits an unaffirmed report of its expert engineer, Steven Pietropaolo, in support of its motion. In his report, Mr. Pietropaolo opines that because the escalator was stopped, the lower stair risers were much smaller in height compared to the other uniform steps above. Therefore, the fact that the steps were uneven, in violation of NYC Building Codes §§27-378 and 27-375(e)(2), caused plaintiff to slip and fall and incur injuries. Mr. Pietropaolo also opined that the test he performed also confirmed that the escalator steps would provide a slipping hazard, especially when wet. Accordingly, plaintiff contends that summary judgment on the issue of liability should be granted in his favor and defendant's motion for summary judgment should be denied.

It is well established that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). "To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his favor...and he must do so by tender of evidentiary proof in admissible form." Friends of Animals, Inc. v. Associated Fur Manuf., Inc., 46 NY2d 1065 (1979). Once the movant has made this showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). Deposition testimony is considered acceptable proof in a summary judgment motion. Id.

In a "slip and fall" case, a plaintiff must establish that defendant created the condition that caused the accident or had actual or constructive notice of the condition. Gordon v. American Museum of Natural History, 67 NY2d 836 (1986); see also, Mullin v. 100 Church LLC, 12 AD3d 263 (1st Dept. 2004). "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 discovery and remedy it" (citations omitted). Gordon v. American Museum of Natural History (supra). [*4]

This court finds that defendant has demonstrated its entitlement to judgment as a matter of law. It is well established that a general awareness that a dangerous condition may be present is insufficient to constitute notice of the particular condition that caused plaintiff's fall. Solazzo v. New York City Transit Authority, 6 NY3d 734 (2005); Pena v. New York City Transit Authority, 48 AD3d 309 (1st Dept. 2008). Plaintiff herein claims that he slipped on a wet escalator due to the rain. However, at his deposition, he could not recall whether or not he saw rain actually hitting the escalator steps where he fell and he could not remember whether or not he saw any wetness on the steps prior to or after his fall. Moreover, Ms. King testified that she did not see anything on the escalator steps even though she was walking down the steps directly in front of the plaintiff. Plaintiff cannot show that the dangerous condition, if any on the escalator steps, existed for a sufficient amount of time for defendant's employees to discover and remedy it. Gibbs v. Port Authority of New York, 17 AD3d 252 (1st Dept. 2005); Rouse v. Lex Real Associates, 16 AD3d 273 (1st Dept. 2005); Garcia v. Delgado Travel Agency, Inc., 4 AD3d 204 (1st Dept. 2004); Gonzalez v. Jenel Management Corp., 11 AD3d 656 (2nd Dept. 2004).

In addition, Mr. Arce and Mr. Del Rio who investigated plaintiff's accident after his fall, did not find anything on the escalator steps that caused the plaintiff to fall. Mr. Del Rio also testified that there was no rain hitting the escalator where plaintiff's accident is alleged to have occurred. Plaintiff's counsel's assertions that defendant knew that the escalators get wet when it rains is conclusory and speculative and insufficient to establish constructive notice.

Moreover, the fact that the escalators were being used in the "off" position thereby creating a change in the riser height between the steps, raises no issues of fact that would preclude summary judgment in defendant's favor. First, plaintiff clearly alleges that the cause of his fall was wetness on the steps and not a height differential in the escalator steps. Furthermore, in Schurr v. Port Authority of New York and New Jersey, 307 AD2d 837 (1st Dept. 2003), cited by the defendant, the court found that the record contained, "...no evidence warranting the inference that the stopped escalator posed a reasonably foreseeable hazard to those who, like plaintiff, used it in the manner of a staircase to reach the next floor...The spacing of the stationary escalator risers was open and obvious to [a]ny observer reasonably using his or her senses' and there is thus no ground to conclude that the risers were not safely traversable in the exercise of ordinary care..." (citations omitted). Id.

Finally, the unsworn report of plaintiff's engineering expert, Stephen Pietropaolo, is insufficient to support plaintiff's cross-motion for summary judgment and insufficient to defeat defendant's motion for summary judgment because it was not in admissible form. Friends of Animals, Inc. v. Associated Fur Manuf., Inc., 46 NY2d 1065 (1979); Zuckerman v. City of New York, 49 NY2d 557 (1980).

Accordingly, defendant's motion for summary judgment dismissing plaintiff's complaint is granted. [*5]

Defendant is directed to submit a copy of this order with notice of entry upon all parties and file proof thereof with the clerk's office.

This constitutes the decision and order of this court.

Dated:February 20, 2009

J.S.C.