Stanton v DBD Servs. Inc.
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Stanton v DBD Servs. Inc. 2011 NY Slip Op 33425(U) December 16, 2011 Sup Ct, NY County Docket Number: 101914/10 Judge: Eileen A. Rakower Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE O F NEW YORK NEW YORK COUNTY _- PRESENT: PART _-_ -_----------_-- - - - - - - - - - - . - - Justic e - - - - - - * I INDEX NO. STANTON, JUNE R. MOTION DATE VS MOTIONSEQ. NO. DBD SERVICES I < I / , i, , I- ' '\ * ' - SEQUENCE NUMBER 002 Ptlon tolfor IW S ) . SUMMARY JUDGMENT i 1.i I < , Index Number I01 91412010 / ~NO(S). Ws). I - - - - - - - - - - - - - - - ii - - - NEW YOHK COUNTY CLEHK'S OFFICE 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........,.,..,.............MOTION 3. CHECK IF APPROPRIATE: ................................................. 1 . 1 CASE DISPOSED 7 IS: c GRANTED 1 1 SETTLE ORDER 7 r1DO NOT POST - DENIED - NON-FINAL DlSPOSlTlON 1 GRA 1 rJ OTHER IN PART SUBMIT ORDER 1-1FIDUCI ~ R APPOINTMENT Y C:I REFERENCE [* 2] SUPREME COURT OF TI42 S I A 17E OF NEW YORK COUNTY OF NEW YORK: PART 15 NEW YORK PI aiiitif i s, - against - Index W N W CLERKS OFFICE 10 1914110 Decision and Order DBD SERVICES, INC., Mi3 KESIDENTTAL 1 LLC, MH RESIDENTIAI, 2, LLC, MH COMMERCIAL, LLC and DOUGLAS ELLIMAN PROPERTY MANAGEMENT, Mot. Seq. No s. 002,004, & 005 Defendants. I Plaintiff brings this action for personal injuries allegedly sustained when she fell after getting her fool caught in a pockct that formed in plastic sheeting covering her apartment floor on October 27,2008. Plaintiff alleges that the floor covering was improperly placed, and that defendants were negligent in failing to secure the covering to the floor or the wall to prevent it from bunching up. Plaintiff lived in a studio apartment which consisted of a living area, a m a l l separate kitchen, a foyer, a sinal1 dressing room, and a bathroom. Plaintiff sustained a leak in her kitchen, mid the leak was determined to be coining from the risers.77 There was asbestos insulation surrounding the risers, which had to be removed prior to repairing the leak. The removal process required three steps. First, the asbcslos was removed, which was followed by air testing. Aftcr it was confinned that all the asbestos was gone, the plumber was called in to fix the pipes. The final step involved repairing the holes and painting the wall. AZZ Environmental ( Azz ) performed the asbestos reinoval. Non party Lawrence Environmental was hired to take air quality samples. Non-party, Pace Plumbers ( Pace ), was rcsponsible for repairing the leaking riser. Defendant DHD 1 [* 3] - Services, Iiic. ( DBD ) was a painting company that provided painting serviccs for the subject building, with an office in the basement. Defendants M Residential I , H LLC, MH Residential 2, LLC, and MH Conimericial, LLC ( MH ) are tlie owners of the building, and defendaiit Douglas Elliman Property Management ( Douglas ) rnanaged the building. DBD cross-claims against ME1 for contractual and coiiimon law indemnification. MH cross-claims against DBD for corninon law indemnification. In addition to the post-removal painting, plaintiff asked the building manager if her living room and foyer could be painted as well - Plaintiff had to be relocated to another apartment prior to the asbestos removal. Before leaving, plaintiff had moved her furniture in order to prepare the apartment for painting, except for a large bookcase that was placed against a wall, and a hanging mirror. The asbestos rcinoval was completcd on, or about October 26, 200s. On October 27, 2008 plaintiff returned to tlie apartment with Mike from DBD, to consult with him about thc painting job. Mike told plaintiff that the bookcase would have to be moved in order to paiiit behind it. I hcy started to remove books from the bookcase but ran out of boxes. Plaintiff left to get more boxes, and when she returned to the apartment, Mike was gone. Plaintiff observed Frank in the foyer chipping paint from the ceiling. Plaintiff began reiiioving the remainder of the books herself. The box was located about five or six stcps from the bookcasc. Plaintiffhad been packing books for about fifteen or twenty minutes, and as she was turning from the box back to the bookcase, her foot got stuck in the plastic sheeting, and she fell. Plaintiff claim that Frank helpcd her up and told her he was cbso~-ry. 7 Plaintirffurther testifies that the plastic covering was not on the floor when she went downstairs to get the boxes, but when she returned it was over most of the area of the living room. DRD now moves for sLmimary judgment dismissing the complaint and the cross-claims against it. By separate motion MI< moves to dismiss the complaint, and seeks summary judgment against DRD on its cross claim for corninon law indemnifjcation. MH moves to consolidate the instant action with the action titled JUNE R. STANTON v. MHC 1 INC., MANHAT TANHOUSE CONDOMINIUM and AZZENVTRONMENTAL, INC., bearing Iiidcx No. 105237/11, for the purposes I No party has produccd a contract as between DBi3 and MH. 2 - [* 4] of trial only. Plaintiff opposes the motions for surnmiiry judgment. DBD submits the depostion transcript of plaintif f; Victor Zajdcl, Painting Supervisor for DBD; Franciszek Siarkowslci ( Frank ), of DBD; Njchal Sinolak ( Mike ) of DBD; Filip Kruaze, of AZZ; Eugene Peron, of Pace; Raul Colon, Handyman for MH; and Patrick Geoghgan, Resident Manager for MH. MH submits duplicate deposition Iranscripts, and also includes the following: the deposition transcripts of Carl Reinlib, General Manager of Douglas; the deposition transcript oflKaul Colon, Handyman for MH; the affidavit of Mr. Reinlib; ajob work order; and an accident report prepared by Douglas. Defendants both claim that plaintiff cannot establish what causcd her fall. Moreover, even if she could establish that there was a dangerous condition, she will not be able to prove that there was notice of such condition. Both DBD and MH assert that they did not create the alleged defect. DBD claims that it AZZ was responsible for the plastic Iloor cover that allcgedly caused plaintiffs accident. DBD asserts that the floor covering, which it describes as thick and cloudy, is the type of plastic used for asbestos removal. MH argues that it did not perform any work in the apartment and that it did not supervise or control DBD s work. The proponent of a motion for summary judgment tnust make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliniinate any material issue offact from the case. Where the proponent makes such a showing, the burden shifts to the party opposiizg the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier offact to determine the issue. The affirmation of counsel f alone is not sufficjcnt to satisfy this requirement. ( Zuckerman v. City o New York, 49 N.Y.2d 557 [ 19801). In addition, bald, conclusory allegations, even if believable, are not enough. (Ehrlich v. .4merican Moningur Greenhouse A4fg. Corp,,26 N.Y .2d 255 [ I 9701). ( Edison Stone C o p v. 42nd Sfreel Devdopnzeizt Corp.,145 A.D.2d 249, 251-252 [lst Dept. 19891). The affirmation of counsel alone is not sufficient to satisfy this requirement. (Zzickerman, ,supra). Initially, the actions, which arise from the same incident, arc properly consolidated for joint trial, as they involve common issues of questions of law and fact(see; CPLR $602[a]). 3 [* 5] Defendants contention that plaintiff-cannot establish the cause of her fall is not supported by the evidence. Plaintiff testifies: Q: How did your accident happen? A: 1 was turning to come back to get more books and my foot, I felt it go into kind o r a pocket, so that 1 couldn t, you know, step forward and that s when 1 fell. ... Q: Did you sce the pocket aftcr you fell? A: No. Q: How do you know it was a pocket? A: Because it felt tight over my foot. You know when you turned around on plastic and I know I couldn t move it so obviously the plastic was holding it. In addition, Mr. Reinlib corroborates plaintift s testimony by describing the area where plaintiff fell as somewhat bunched and not flat on the floor. The instant action can bc distinguished from the facts in Martinez v.Trustees o Columbia f University in City of New York, 27 1 AD2d 223[1 st Dept. 20001, where the court found that there was no direct evidence connecting the placemelit of a drop cloth to plaintiff s fall, since her own testimony cstablished that it was more likely her inattentiveness that caused her to trip. (also compare; Jacobsohn v. New York Hospitd, i 5 0 AD2d 553Llst Dept. 19981, whcre the court found that there was no evidence that a runner that plaintiff alleged caused her fall had bunched up or was raised). It is wcll settled that in order for a dcfendant to be found negligent for a defective condition, the defendant must have caused or created the defect, or had actual or constructive notice of the existence of such defect. (see Beck v. J.J.A. Holding Corp., 12 A.D.3d 238 [ l Dept. 20041). Where a defendant moves for summary judgment, it has the burden in the fjrst instance to establish, as a matter of law, that either it did not create the dangcrous condition which caused the accident or that it did not have actual or constructive notice ofthe condition . (Mitchell v. City ofNew York, 29 AD3d 372Clst Dept. 20061). Here, defendants have establislied that there was neither actual or constructive notice. Plaintiff testifies that she traversed the same path safely for twenty minutes 4 [* 6] before her fall, and there is no cvidencc of coinplaints regarding the plastic sheeting. However, def cndants have failed to establish, as a matter of law, that they did not cause ofcreate the alleged defect. Plaintiffhas presented facts from which a jury inay reasonably infer that defendants were negligent in failing to properly securc the plastic covering to the I-looror the wall, thereby allowing it to bunch up and create a tripping hazard.(see; Dillon v. Rockaway Beach Hoxpital und Dispmrary, 284 NY 176[19401). As to the issue of who was responsiblc for creating the alleged defect, the testimony contains differing accounts of the circumstances surrounding plaintifrs accident. For example, plaintiff testifies that there was no plastic on the floor when she left the apartment to get more boxes, but that it was there when shc returned. The DBD witnesses, however, claim that AZZ covcred the floor with a thick cloudy plastic and Masonite prior to its arrival. Mi-,Kruaze, for AZZ, tcstiflies that the living room floors were prepped before it arrived by the building people. Mr. Kruaze furthcr testifies that AZZ used a 6 ml fire retardant plastic on the floor in the kitchen, around where it was working, but it did not place anything on the living room floor. Mr. Colon, the building handyman, testiilles that the building is not in chargc of covering the floors in preparation for work in the apartments. Mr. Goeglian, the building manager, testifies that when he entercd the apartment at some unspecificed time after the work was completed, he observed that the floors were covered with white plastic which hc surmised belongcd to AZZ. Mr, Reinlib testifies that when he went to the apartment arter plairitift s accident to investigate, he observed the floors covcred in what appeared to be a typical 1- I /2, two mil type of polystyrene p I ast i c sheeting. In light oftlie conflicting testimony, sumiimry judgment must be denied, as it is well settled that issues of credibility are to be resolved by the jury.(see; Lu v. Spinelli, 44 Ad3D 546[ 1st Dept. 20071). Nor can siinmary judgement be granted on MH s cross-claim for indemnification. Such relief is premature before an apportionment of kwlt has been determined. (Czievas v. Ct qf New Y m k , 32 AD3d iy 372[ 1st Dept. 20061). Wliereforc it is hereby 5 [* 7] ORDERED that thc i6otion to consolidate for purposes ofjoint trial is granted and the above captioned action will be jointly tried with the action titled JUNE R. SlANTON v. MHC 1 INC., MANI-TAT'I'AN IIOUSE CONDOMINKJM and AZZ ENVIRONMENTAL, INC., bearing Index No. 105237/1 I ; and it is further ORDERED that, within 30 days from cntry o r this order, counsel for the inovant shall serve a copy of it with notice of entry upon the Clerk of the Trial Support Office (Room 158), and the Clerk shall assign the action bcariiig Index No. 105237/11 to the undersigned Justice; and it is further OWERED that upon payment of the appropriate calendar fees and the filing of notes of issue and stakincnts of readiness in each of the above actions, the Clerk ofthc Trial Support Office shall place the aforesaid actioiis upon thc trial calendar for a joint trial; and it is fiiflher ORDERED that defendant DBD Services, Inc.'s judgment is denied; and it is further motion for summary ORDERED that defendants MI4 Kcsidential I , LLC, MH Rcsiclential2, LLC, and MH Commercial, LLC, Douglas Elliman Property Management's motion for summary judgment dismissing plaintiffs coinplaint is denied; and it is further ORDERED that MH Residential 1, LLC, MH Residential 2, L I E , and MI3 Comnlercial, LLC, Douglas Elliman Property Management's motion for summary judgment on its cross claim for indemnification is denied. This constitutes the decision and order of the court. All other relief requested is denied. DATED: December 16,20 I 1 -- EILEEN A. RAKOWEK, J.S.C. 6 NEW Y (-21 ;I; COUNTY CLEHK'S O F F I C f -
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