Atteritano v SF & G Assoc.

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Atteritano v SF & G Assoc. 2012 NY Slip Op 30667(U) March 6, 2012 Supreme Court, Nassau County Docket Number: 20865/09 Judge: Karen V. Murphy 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 SUPREME COURT - STATE OF NEW YORK TRIAL TERM. PART 11 NASSAU COUNTY PRESENT: Murphv Justice of the Supreme Court Honorable Karen 11 JULIA ATTERITANO, Index No. 20865/09 Plaintiff(s), -against- Motion Submitted: 12/21/11 Motion Sequence: 001, 002, 003, 004 SF & G ASSOCIATES, ROCKVILLE CENTRE OFFICE CENTER ASSOCIATES, ATLANTIC MEDICAL ANESTHESIA and PAIN MAAGEMENT, ISLAND PAIN MANAGEMENT SERVICES, P. C. a/k/a LONG ISLAND PAIN MANAGEMENT, LEONARD INGBER, M.D., as a Tenant in Suite 207, and STEVEN FRIEDMA, D., P. C., as a Tenant in Suite 207, and MILL RIER MANAGEMENT CORP., Defend ant(s). The following papers read on this motion: Notice of Motion/Order to Show Cause........................ XXXX Answering Papers............ ....... XXXXX Reply............................................................................. . XXXX Briefs: Plaintiff s/Petitioner ' s.............. Defendant' s/Respondent' s......................... ......... Defendants: SF &G Associates (" SF &G" ), Rockvile Centre Office Center Associates ), Mil River Management Corp. (" Mil River ); Steven Friedman , M. c.; Atlantic Medical Anesthesia and Pain Management (" Atlantic Medical" ), Island Pain Management Services , P. C. a/k/a Long Island Pain Management (" Long Island Pain Rockvile Centre [* 2] Management"); and Leonard Ingler (sic)l , M. D. move for an Order granting Summary Judgment dismissing the complaint of plaintiff, Julia Atteritano , and dismissing all cross claims against them. Defendant Rockvile Centre Office Associates was the owner of the subject premises on May 8 , 2008 , the date of the accident. Mil River Management is a propert management company that managed the subject premises for 37 years , including at the time of the accident. SF & G Associates is a subsidiar of Mil River , with offices at the subject premises. It denies having anything to do with the management or ownership of the premises. Dr. Ingber is a named tenant for Suite 207 at the subject premises and he sub- leases space to Dr. Friedman. Pain Management of Long Island is a sub-corporation of defendant Atlantic Medical Anesthesia Associates , P. C.. Long Island Pain Management is a tenant in the subject building and the medical office , Suite 201 where Plaintiff was treated by Dr. Iadevaio on the date of the occurrence. The instant motions arise from an underlying personal injury action where plaintiff sustained injuries from a slip and fall in the hallway of a medical office building. Plaintiff alleges acts of negligence against defendants, in that they breached their duty to provide a reasonably safe facilty, and that defendants wilfully and recklessly disregarded the safety of their patrons and/or visitors. On May 8 , 2008 , at 4:45 p. , plaintiff, a long- term patient of the Long Island Pain Management facilty, located in Suite 201 of the subject premises was present for an appointment with her treating physician , Robert Iadevaio , M. : According to plaintiff, after receiving a steroid injection in her back , she exited the procedure room and as she entered the hallway of the subj ect premises , she immediately tripped and fell. Plaintiff attributes the cause of her fall to the white specimen boxes , which she alleges were placed in the hallway at the right of the procedure room doorway. The site of the accident was in the hallway outside Suite 201 , on the second floor of That caption was changed pursuant, to an Order of this Court , dated June 20 , 2011 , to reflect the correct spellng of co- defendant's , Leonard Ingber s name. Accordingly, the name has been changed from Leonard Ingler M. D. to Leo hard Ingber , M. , and the caption has been so modified. [* 3] the subject premises and the other office suite in the immediate area was Suite 207. At all times referred to herein , Suite 207 contained the medical offices of defendants and building tenants, Dr. Ingber and his subleasee , Dr. Friedman. It is conceded that Ingber and Friedman utilized white specimen boxes that were one foot tall , one foot wide and one foot deep, placed in the hallway. Defendants maintain that the specimen boxes were to the left of the doorway, if one was looking at the door to Suite 207. Plaintiff denies seeing the specimen boxes at any time prior to her fall , including upon entering the treatment room 12- 20 minutes prior to her fall or upon any earlier visit to the building for her ongoing treatment. It is well recognized that summar judgment is a drastic remedy and as such should (Andre only be granted in the limited circumstances where there are no triable issues offact. 2d 131 (1974)). Summar judgment 2d 361 320 N. 2d 853 362 N. should only be granted where the Court finds as a matter oflaw that there is no genuine issue 2d 594 (2d 41 A. D.3d 755, 837 N. (Cauthers v. Brite Ideas, LLC, as to any material fact. Dept. , 2007)). The Court' s analysis of the evidence must be viewed in the light most v. Pomeroy, 35 N. favorable to the non-moving par, herein the plaintiff. 18 A. D.3d 625, 796 N. Transportation Authority, A propert owner (Makaj v. Metropolitan 2d 621 (2d Dept. , 2005)). is charged with the duty to maintain the premises in a reasonably (Katz v. Westchester County Healthcare Corp. 82 A. D.3d 712 , 713 , 917 safe condition. N. Y. 2d 896 (2d Dept. , 2011)). Of course , a propert owner may be held liable for damages resulting from a hazardous condition on its premises if it created the hazardous condition or had either actual or constructive notice of the condition in sufficient time to remedy it. 67 N. 2d 836 837, 492 N. 2d 774 (Gordon v. American 2d 646 (1986)). To constitute constructive notice the defect must be visible and 501 N. apparent and it must exist for a sufficient length of time prior to the accident to permit Museum of Natural History, 37 A. D.3d 749, 750 , 831 2d 220 (2d Dept. , 2007)). To be entitled to summary judgment in a trip and fall case a defendant is required to show prima fade that it maintained the premises in a reasonably safe condition and she did not have notice of, or create , a dangerous condition that posed a (Villano v. Straihmore foreseeable risk of injury to persons expected to be on the premises. 2d 124 (2d Dept. , 2010)). Terrace Homeowners Assn., Inc. 76 A. D.3d 1061 , 908 N. defendant to discover and remedy it. (Borenkoffv. Old Navy, duty, however, to protect or war against a condition that is not (Neiderbach inherently dangerous and/or is readily observable by the use of one 2d 91 (2d Dept. , 2008)). v. 7-Eleven, Inc. 56 A. D.3d 632 633 , 868 N. A propert owner has no s senses. Although the open and obvious nature of a dangerous condition wil not preclude a finding of liabilty against a landowner who causes a foreseeable risk of harm through a failure to maintain the propert in a reasonably safe condition , summary dismissal is appropriate where the complained of condition was both open and obvious and , as a matter [* 4] of law , was not inherently 2d 386 (2d Dept. , 2007)). dangerous. (Rao-Boyle v. Alperstein 44 A. D.3d 1022 , 844 While , it is true that whether a certain condition qualifies as dangerous or defective is usually a question of fact for the jury to decide , summary judgment in favor of a defendant is appropriate where a plaintiff fails to submit any evidence that a particular condition is actually defective or dangerous. Here , defendants have all indicated that there were no prior complaints regarding the placement of the boxes, nor has anyone reported any accidents Przybyszewski 2d 435 (2d Dept. , 2003)). 303 A. 2d 482 , 755 N. v. Wonder Works Furthermore , testimony established that the specimen boxes had been in the hallway to the left of suite 207 for decades , without incident. where anyone has been injured as result of the placement of the boxes (see Const., Inc., Further , there is no evidence that the specimen boxes were moved or placed in the doorway of suite 201 or in the middle of the hallway. Although plaintiff alleges that she tripped over them , that does not in and of itself mean that a dangerous condition existed. Further , the photographs submitted in support ofthe defendants ' motion , established that the position of medical boxes in the hallway along the wall to the left of suite 207 was not an inherently dangerous condition. The specimen boxes were clearly visible and not unexpected in a medical office building. This Court finds that Defendants have met their burden. Where a condition that causes injury is open and obvious and readily observable by those employingthe reasonable use of their senses, it is not inherently dangerous as a matter of law so (Gagliardi v. Walmart Stores, Inc. 52 A. D.3d 777 , 860 N. as to create liabilty. 2d 207 (2d Dept. 2008);Sclafai v. Washington Mutual 36 A. D.3d 682 829 N. S.2d 553 (2d Dept. , 2007)). Here , the white specimen boxes placed on blue carpeting in the hallway, outside of a medical office , are not inherently dangerous and were readily observable by those employing the reasonable use of their senses. Having satisfied their burden , the burden now shifts to the (Felix v. New York City Transit 2d 835 (2d Dept., 2006)), by tendering evidentiary proof Auth. 32 A. D.3d 527 819 N. in admissible form , sufficient to create material issues of fact requiring a trial. Mere Plaintiff to establish a triable fact with respect to liabilty conclusions and unsubstantiated allegations or assertions are insufficient (Zuckerman v. City 2d 595 (1980)). The Court' of New York 49 N. 2d 557 562 404 N. 2d 718 , 427 N. analysis of the evidence must be viewed in the light most favorable to the non-moving par, 18 A. D.3d 625 , 796 (Makaj v. Metropolitan Transportation Authority, herein Plaintiff. 2d 621 (2d Dept. , 2005)). Although the absence of direct evidence of causation would not necessarily compel a grant of summary judgment in favor of the defendant , as proximate cause may be inferred [* 5] from the facts and circumstances underlying the injury, the evidence must be sufficient to permit a finding based on logical inferences from the record and not upon speculation alone (see 83 A. D.3d 929 , 921 N. Thompson v. Commack Multiplex Cinemas, 2d 304 (2d Dept. 2011)). Plaintiff avers that she fell upon taking her first step out of the procedure room and She argues that Cynthia Stackler- Ziegler testimony is contradictory in that she states in her sworn affidavit that the boxes belonged to that the boxes were the cause of her fall. Dr. Ingber and Dr. Friedman and the only area where the specimen boxes were located was outside of Suite 207 , yet while testifying at her earlier deposition , she did not know which tenants placed or maintained specimen boxes in the hallway. The plaintiff further posits that Stackler- Stiefler s lack of credibilty raises a question of fact that can only be resolved by a jury as to these defendants. Ms. Stackler- Ziegler s testimony does not raise a triable issue of fact in light of the other circumstances in this record. It is noted that the plaintiff does not address the statement recorded in the Long Island Pain Management' s chart where she initially attributed her fall to her toe being " caught" in the carpet: " . . . (p)t. stated she caught her toe on carpet (and) tripped. Pt. noted nor t) unusual with sneakers. . .. (See Notice of Motion , SF&G, RockvileCentre , and Mil River Exhibit U). The author of the note , Dr. Iadevaio, during his deposition , confirmed that plaintiff made this statement. There is no mention therein of any specimen boxes , and it is also noteworthy that the note is contemporaneous with the date of the subject accident. The plaintiff s only attempt to refute this evidence is her contention that she repeatedly and unequivocally contended that she tripped over the boxes (see Affirmation in Opposition to SF&G , Rockvile Centre , and Mil River). However , plaintiffs testimony to the cause of her accident , is anything but unequivocal: " Well , when I opened up the door, I took a step out and I tripped and fell over, I don t know how , you know. . . " and . . . At the time of my accident , I hadn t seen boxes. I know I tripped and fell , that's all I know. . . " ( see Notice of Motion , Atlantic Medical , Long Island Pain Management , Exhibit , p. 21 , In. 12- , p. 31 , In.13- 15). Plaintiff s admission at her deposition that she could not identify the alleged defect that caused her to fall is fatal to the complaint since the trier of fact would be required to base a finding of proximate cause upon nothing more than speculation. Further, other than her testimony, there is no other evidence to support her claim that the specimen boxes were placed outside the procedure room , and even if they were So placed, that such a condition created or caused a hazard or a danger. As such , her affidavit , dated December 1 , 2011 submitted in opposition to the defendants ' motion was clearly designed "to avoid the Israel v. Fairharbor Owners, Inc. 20 A. D.3d consequences ofthe earlier admissions " (see [* 6] 392 , 798 N. S.2d 139 (2d Dept. , 2005)). Plaintiff s self-serving affidavit does little to overcome her burden of proving a triable 2d 497 (2d Dept. , 2001)). (Fisher v. Williams 289 A. 2d 288 , 734 N. Moreover , the speculative and conclusory assertions as set forth by the plaintiff are insufficient to defeat summary judgment. In opposition to the defendant' prima facie showing of its entitlement to judgment as a matter o f law , the plaintiff failed to submit any issue of fact competent evidence establishing that the defendant' s alleged negligence was a substantial cause of the events leading to her injuries or that the specimen boxes were inherently dangerous. This Court finds the plaintiff has failed to meet her burden In light of this determination , this Court does not have to reach the remaining contentions as set forth by the paries. Accordingly, the defendants ' motions are granted in their entirety, the plaintiffs complaint is dismissed as against all defendants , and all cross claims are rendered moot. The foregoing constitutes the Order of this Court. Dated: March 6, 2012 Mineola, N. ENTERED MAR 1 2 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE

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