Lyons v Burger King Corp.

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Lyons v Burger King Corp. 2012 NY Slip Op 30252(U) January 23, 2012 Sup Ct, Nassau County Docket Number: 003285/2010 Judge: Thomas P. Phelan 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] SHORT FORM ORDER STATE OF NEW YORK SUPREME COURT Present: HON. THOMAS P. PHELA. Justice TRIAL/IAS PART 2 NASSAU COUNTY AGATHA LYONS Plaintiff( s ORIGINAL RETURN DATE: 11/29/2010 SUBMISSION DATE: 11/29/2010 INDEX No. : 003285/2010 -against - BURGER KING CORPORATION and MILLER REALTY ASSOCIATES, LLC, MOTION SEQUENCE #4 Defendant(s) . Notice of Petition. . Verified Answer. . Plaintiffs Affrmation in Opposition............................ Reply Affirmation................................................... Motion by defendants for leave to renew their prior motion for an order pursuant to CPLR 3212 granting them summar judgment dismissing the complaint as against them is granted; and , upon renewal , the motion is denied. Plaintiff commenced this action to recover damages for personal injuries allegedly sustained as a result of an alleged slip and fall on ice in the parking lot of the Burger King restaurant ("Burger King ) located at 4201 Hempstead Turnpike Bethpage , New York. The accident occurred on or about December 22 2009. 2011 , defendants ' motion for summary judgment without prejudice was denied with leave to renew within thirt (30) days from the By order dated October 13 date of said order. Movant's reliance upon the transcripts of deposition testimony, which were unsigned and unsworn , and the absence of letters transmitting the transcripts of the depositions of the witnesses for defendants , or an affidavit submitted by anyone with personal knowledge, necessitated the denial of the motion as facially deficient. Upon review of the papers submitted, the Court finds that defendants have cured the evidentiary defect as all of defendants ' witnesses have executed their deposition transcripts (CPLR 3ll6(a)). Defendants have also anexed a full copy [* 2] RE: LYONS v. BURGER KING, et at. Page 2. of plaintiff s transcript to their Reply papers which was certified by the Court Reporter. After defendants discontinued the action against third-par defendant , South Shore Building Maintenance , Mr. Gendelman refused to execute his transcript. Where deponent refuses to execute his transcript when duly offered , the transcript will be 208 AD2d 824 (2 Dept 1994) Iv to app den. 85 NY2d 803 (1995)). deemed admissible (See, Thomas v Hampton Express, In support of their motion , defendants submit inter alia the transcripts of testimony of plaintiff, Theresa Sharp, the drver s assistant; Stephanie Moran , the hourly manager at Burger King; Diana Marquez , the general manager at Burger King; and Bruce Gendelman , the owner of South Shore Building Maintenance. Overall , defendants assert that they did not create the patch of black ice on which plaintiff fell nor did they have actual or constrctive notice of the allegedly black ice. Furher , there can be no notice of a black ice dangerous condition condition as a matter of law (Christal v Ramapo Cirque Homeowners Ass ' , 51 AD3d 846 (2 Dept 2008)). While it had snowed three days prior to plaintiffs alleged fall , the testimony shows that Burger King Corporation hired South Shore Building Maintenance to plow the parking lot of the subject Burger King immediately after the snow ceased to fall. In Mr. Gendleman s post-job inspection , he did not observe any ice in the parking lot. Therefore , the previous snowfall and the patch of black ice on which plaintiff allegedly fell on December 22 2009 , are completely unelated. Moreover , the testimony of Stephanie Moran establishes that, on the morning of the alleged fall she inspected the parking lot and did not observe any ice. In opposition to defendants ' motion , plaintiff submits inter alia her own deposition testimony, a photograph of the icy condition taken on the date of the accident immediately thereafter and a certified weather report which reveals that 10 inches of snow , ice pellets , hail and ice were observed on the ground on the day of plaintiff s accident. In sum, plaintiff asserts that defendants have failed to submit evidence that they requested salt or sand on the premises; that they salted or sanded the premises after the December 20, 2009 , snowstorm; that they inspected the parking lot on the premises at any time after the December 20 2009 , snowstorm; that the piles of [* 3] RE: LYONS v. BURGER KING, et at. Page 3. snow did not contrbute to the formation of ice which caused Ms. Lyons to fall; and trable issues of fact exist. (see Basso v Miller 40 NY2d 233 241 (1976)) and , thus , may be found liable ifit created or had actual or constrctive notice of (See A landowner has a duty to maintain its premises in a reasonably safe manner the alleged defective condition Gordon v American Museum of Natural History, Cassone v 67 NY2d 836 (1986); State of New York 85 AD3d 837 (2 Luksch v Blum-Rohl Fishing Corp. 3 AD3d 475 476 (2 Dept 2004)). However , there is no duty to protect or warn against open and obvious conditions that are not inherently dangerous Dept 2011); (Franzese v Tanger Factory Outlet Centers Inc. see Russ v Fried 73 AD3d 1153 (2 Weiss v Half Hollow Hills Cent. School Dist. 70 AD3d 932 (2 Pipitone v 7-Eleven Inc. 67 AD3d 879 Cupo v Karfunkel 1 AD3d 48 52 (2 Dept 2003)). The issue of whether a dangerous condition is open and obvious is fact specific and usually a Ctr. , 71 AD3d 1120 Dept 2010)). Whether an asserted hazard is open and obvious cannot divorced from the surrounding circumstances. A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwar where (see Plus Realty Corp. 54 AD3d 1008 , 1009 (2 Mauriello v Port Auth. ofN,. Y. and N.J. 8 AD3d 200 (1 st Dept 2004)). 2011 NY Slip Op. 07200; Dept 2010); Dept 2010); Dept 2009); question of fact for a jury to resolve (see Shah v Mercy Med. the condition is obscured or plaintiff is distracted Mazzarelli v 54 Dept 2008); A defendant who moves for summar judgment in a slip-and- fall case has the showing that it neither created the hazardous condition nor had actual or constrctive notice of its existence for a sufficient (see Amendola v City of New York, 89 AD3d 775 (2 Schiano v Mijul, Inc. 79 AD3d 726 (2 . Dept 2010); Walsh v Super Value, Inc. 76 AD3d 37l(2 Gambino v City of New York 60 AD3d 627 (2 Dept 2009)). " To meet its initial burden on the issue of. . . constrctive notice , the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Amendola v City of New York, supra; Birnbaum v New York Racing Assn. , Inc. , 57 AD3d 598 , 598- 599 (2 see Mei Xiao Guo v Quong Big Realty Corp. 81 AD3d 610 (2 Kostic v Ascent Media Group, LLC 79 AD3d 818 (2 Gershfeld v Marine Park Funeral Home 62 AD3d 833 (2 Dept 2010); see Piacquadio v Recine Corp. , 84 NY2d 967 969 (1994)). initial burden of making a prima facie length of time to discover and remedy it Dept 2011); Dept 2010); Dept 2008); Dept 2011); Dept 2010); Realty Viewing the evidence in the light most favorable to the non-movant (Taylor v --- [* 4] .. ., -- _-- RE: LYONS v. BURGER KING, et al. Rochdale Vilage Inc. , 60 AD3d 930 (2 Page 4. Fundamental Portolio 7 NY3d 96 (2006); see Mosheyev v Pilevsky, 283 AD2d 469 (2 see Branham v Loews Orpheum Cinemas, Inc. 8 NY3d 931 , 932 (2007)), issues of fact exist which preclude the granting of summary judgment. Accordingly, the motion is denied. Dept 2009); Advisors, Inc. v Tocqueville Asset Mgt., Dept 2001); This constitutes the order and judgment of this Court. liON THOM Dated: P. PHELA \V ENTERED JAN Attorneys/Parties of Record Siler & Ingber , LLP Attorneys for Plaintiff 301 Mineola Blvd. Mineola , NY 11501 Wilson , Elser, Moskowitz , Edelman & Dicker LLP Attn: John A. Hsu , Esq. Attorneys for Defendants Burger King and Miler Realty Associates , LLC 3 Ganett Drive White Plains, NY 10604 Theresa Shar Non- Party Witness 276 N. Columbus Avenue Freeport , NY 11520 25 2012 ..ISAU COUtTY cem Cll.,.OFFIIE

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