Gina v Glo Nightclub
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Gina v Glo Nightclub 2012 NY Slip Op 30730(U) March 15, 2012 Supreme Court, Nassau County Docket Number: 23195/10 Judge: Denise L. Sher 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] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Cour Justice JUANA MARISA OINA and JOHN OINA Plaintiffs TRIAL/IAS PART 31 NASSAU COUNTY Index No. : 23195/10 Motion Seq. No. : 01 Motion Date: 01/18/12 - against - OLO NIOHTCLUB , MOM PRODUCTIONS , INC., JOHN NOEL SMYTHE , MARIO A. POSILLICO,. LUIGI STASI and PSS REALTY ASSOCIATES , LLC, Defendants. The followine papers have been read on this motion: Papers Numbered Notice of Motion Affrmation and Exhibits and Memorandum of Law Affrmation in O osition and Exhibits Affrmation in Reply Upon the foregoing papers , it is ordered that the motion is decided as follows: Defendants move , pursuant to CPLR 93212 , for an order granting them summar judgment and dismissing plaintiffs ' Verified Complaint on the grounds that plaintiffs have failed to identify a defective condition that was the cause of the alleged accident and that plaintiffs have failed to establish actual or constructive notice of an alleged defective condition. Plaintiffs oppose defendants ' motion. This personal injury action arises out of a slip and fall accident that occurred at defendant 010 Nightclub (" 010") located at 737 Merrick Avenue , Westbur, New York. It is alleged that , on the night of December 4 2009 , at approximately 10:00 p. , while a patron at [* 2] the aforementioned nightclub , plaintiff Juana Marissa Oina was caused to slip and fall on the dance floor of said premises due to liquid on said dance floor. Plaintiffs allege that defendants had actual notice of the alleged condition because , they, through their agents , servants and/or employees knew of the wet , slippery, hazardous condition on the dance floor at the nightclub. Plaintiffs also claim that defendants , through their agents , servants and/or employees , caused and created the condition in mopping said dance floor. Plaintiffs commenced the instant action by fiing a Sumons and Verified Complaint on or about December 20 2010. Issue was joined on or about March 1 , 2011. It is well settled that the proponent of a motion for sumar judgment must make a showing of entitlement to judgment as a matter of law by providing sufficient prima facie See Silman evidence to demonstrate the absence of material issues of fact. Century- Fox Film Corp. 3 N. Y.2d 395 , 165 N. Y.S.2d 68 N. Y.2d 320 508 N. Y.S.2d 923 (1986); Hospital, 557 427 N. Bhatti S.2d 595 (1980); v. Alvarez 498 (1957); Zuckerman v. Twentieth v. Prospect v. City of New York, Roche 140 A.D.2d 660 528 N. 49 N. Y.2d 2d 1020 (2d Dept. 1988). To obtain summary judgment , the moving pary must establish its claim or defense by tendering suffcient evidentiary proof, in admissible form , suffcient to warant the court , as a matter oflaw See Friends of Animals, Inc. , to direct judgment in the movant's favor. Associated Fur Mfrs. , Inc. 46 N. Y.2d 1065, 416 N. Y.S.2d 790 (1979). Such evidence may include deposition transcripts , as well as other proof anexed to an attorney CPLR 93212 (b); Olan If a sufficient v. Farrell Lines prima facie Inc., 64 N. Y.2d 1092 s affirmation. See 489 N. Y.S. 2d 884 (1985). showing is demonstrated , the burden then shifts to the non-moving part to come forward with competent evidence to demonstrate the existence of a material issue of fact , the existence of which necessarily precludes the granting of summar judgment and necessitates a trial. See Zuckerman v. City of New York 49 N. Y.2d 557 , 427 [* 3] Y.S. 2d 595 (1980), supra. When considering a motion for summar judgment , the fuction of the court is not to resolve issues but rather to determine if any such material issues of fact exist. (1957), supra. issue. v. See Silman Twentieth Century Fox Film Corp. Mere conclusions or unsubstantiate d See Gilbert Frank Corp. v. 3 N. Y.2d 395 , 165 N. Y.S.2d 498 allega Federal Ins. Co. 70 N. ions are insufficient to raise a triable 2d 966 , 525 N. Y.S.2d 793 (1988). Further , to grant sumar judgment , it must clearly appear that no material triable issue of fact is presented. The burden on the Court in deciding this type of motion is not to resolve issues of fact or determine matters of credibilty, but merely to determine whether such issues exist. See Barr v. Albany County, 50 N. Y.2d 247 , 428 N. Y.S. 2d 665 (1980); Daliendo Johnson 147 A.D.2d 312 543 N. Y.S.2d 987 (2d Dept. 1989). Defendants submit that they are entitled to summar judgment based upon plaintiff Juana Marissa Oina s inability to identify the cause of her alleged accident. Defendants submit that , at her Examination Before Trial (" EBT" ), plaintiff Juana Marissa Gina testified that she went to defendant 010 for her birthday with her daughter and , ultimately, met up with several friends. She fuher testified that , during said evening, she consumed approximately three margaritas and that she was feeling buzzed. Plaintiff Juana Marissa Oina stated that she remained on the dance floor dancing most of the night. While dancing, she slipped and fell backward. Prior to fallng, she did not see anything on the dance floor. After fallng, she did not see any liquid or anything on the dance floor. See Defendants ' Affirmation in Support Exhibit F. Defendants argue that there is " virtually no evidence in the records to establish that a defect or dangerous condition existed at the time of plaintiffs accident. Moreover , even if the Cour inferred that moisture was present on the dance floor , there is no evidence to establish that defendants created the condition and/or had notice of the condition. " Defendants contend that summar judgment should be granted due to plaintiff Juana Marissa Oina s failure to identify [* 4] the cause of her fall. Defendants submit that plaintiff Juana Marissa Gina s failure to identify the alleged defect that caused the claimed incident is fatal to her case because the trier of fact would be required to base a finding of proximate cause on nothing more than speculation. In opposition to defendants ' motion , plaintiffs submit that their Verified Bil Pariculars alleged that " (p )laintiff of JUANA MARA OINA was caused to slip and fall due to liquid on the dance floor of OLO NIOHTCLUB; She was caused to fall because of a wet slippery hazardous condition of the area that had just been mopped; She was caused to fall because the Defendants negligently mopped the dance floor without warning the Plaintiff of the wet , slippery and hazardous condition of the area of the dance floor that had just been mopped; She was caused to fall due to Defendants ' failure to place cones or signs in the area that had just been mopped; She was caused to fall because of Defendants ' failure to cordon off the area which had just been mopped; The Defendants had actual notice because their agents , servants and/or employees caused and created the condition in mopping the dance floor and in failing to warn Plaintiff. See Plaintiffs ' Affirmation in Opposition Exhibit A. In support of their opposition , plaintiffs submit the EBT testimony of non-par Patricia Freudenberg. See witness Plaintiffs ' Affrmation in Opposition Exhibit E. Ms. Freudenberg testified that , on the evening in question, at one point a drink was spiled on defendant Olo dance floor and someone employed by defendant 010 came to mop the area. She added that the person who came to mop the dance floor did so in the middle of people dancing. Ms. Freudenberg stated that the mopping of the dance floor took place at around 10:00 that evening and that it was taking place directly behind plaintiff Juana Marissa Gina. At said EBT , Ms. Freudenberg was asked the following question and gave the following answer Q. Now, you told us at some point after Ms. Gina fell that you did observe an area of the floor that was wet? A. I only noticed it after the manager-like when she fell , I didn even put the two together. She fell right at that spot , like I said. Let' s say, you re the gentleman she was talking to and let' s say you re her daughter and now she stars walking backwards , and [* 5] then all of a sudden I saw her fall. It wasn t like I didn t know what happened. I saw her fall. She didn t know what happened. It was like a rug pulled from underneath her. And as soon as sheI helped her up and you could see that she was like this , like that And it was like one of those things like whoa , like you didn have to be a doctor to see. So immediately, we helped her over to a couch and I guess the bouncers notified a manager because the guy was wearing a suit, so I'm assuming he was in the managing position , and he came to ask what happened , and I said she fell and looked in the area where she fell. I said holy comolly, there it is. She fell right there , you know. And then I put it together , oh , they mopped right there. And where the light is beaming and with the lighting, you could see that the floor is wet and he agreed that he saw it." See id. Plaintiffs also submit the EBT testimony of Robert Smythe in support oftheir opposition. See Plaintiffs ' Affrmation in Opposition Exhibit F. Mr. Smythe is employed by defendants as the general manager of defendant 010. He was working in his capacity as general manager on the night of the subject incident. He testified that neither he , nor any of the defendants , leared about plaintiff Juana Marissa Gina s accident until their receipt of the Summons and Verified Complaint in the within action. Mr. Smythe also stated that the floor porters were responsible for the continuous maintenance of the floor of the nightclub and keeping general public areas clean. He added that , in the event of a spil , a porter would use a dJ1mop taken from the kitchen. The areas would be cordoned off by a security guard to keep a safe perimeter and that , technically, there would not be any time allowed for the area to dry because of the use of the dry mop. However , the security guards would not necessarily get involved if the spil itself was not brought to their attention. See id. Plaintiffs also submitted an Affidavit from Lisa Marie Oina, plaintiff Juana Marissa Gina s daughter , in support of their opposition. See Plaintiffs ' Affirmation in Opposition Exhibit O. Lisa Marie Oina states that , on the evening in question , she saw a nightclub employee mop the dance floor in the area where he mother was standing. As her mother was slowly dancing backward into the area that had just been mopped , Lisa Marie Gina saw her [* 6] mother s feet slip out from underneath her as if she was standing on a sheet of ice. When Lisa Marie Gina ran to her mother , she saw the wet and greasy area in which her mother was lying. See id. Plaintiffs argue that " cherr-picking the plaintiffs testimony to show that the plaintiff did not know what caused her to fall wil not be enough to dismiss the plaintiff s actions if there are other facts and circumstances raising questions of fact as to the dangerous condition, the creation of the condition and causation of the falL.. Plaintiff can establish her case with facts and circumstances that permit a logical inference of proximate cause. In reply to plaintiffs ' opposition , defendants argue " (p)laintiffs attempt to establish a defect through Ms. Freudenberg s testimony and a self-serving affidavit from plaintiffs daughter is also insuffcient. Ms. Freudenberg did not observe anything on the dance floor until less than five minutes after the plaintiffs fall.... Additionally, when she observed the area after plaintiffs fall, there were people in the area where she observed the wetness.... She saw moisture from a distance , after time had lapsed , and after other people had the opportunity to traverse the area. Thus , her testimony is purely speculative as to what she allegedly witnessed on the floor as being the defect that caused plaintiffs injur. Again , Mrs. Gina s daughter s affidavit is also lacking information regarding the exact cause of plaintiff s fall. Furhermore , her affdavit contradicts plaintiffs testimony in that plaintifftestified that Patt came to her immediately afterward and her daughter was talking to someone that worked at Glo.... Additionally, no one ever identified to plaintiff what caused her to fall....Neither Ms. Freudenberg nor Mrs. Gina daughter are able to pinpoint the exact cause of her fall , and it is readily apparent plaintiff does not know. To establish aprimafacie case of negligence , plaintiff must demonstrate that defendants created the condition which caused the accident or that defendants had actual or constructive notice of the condition. Y.S. 2d 760 (2d Dept. 1994); v. See Bykofsky Cusack Waldbaum s Supermarket 210 A.D. 2d 280 619 v. Peter Luger, Inc. 77 AD. 3d 785 , 909 N. Y.S. 2d 532 [* 7] (2d Dept. 2010). To constitute constructive notice , a defect must be visible and apparent and it must exist for a sufficient length oftime prior to the accident to permit defendant's employees to discover and remedy it. See Gordon v. American Museum ofNationaZ History, 67 N. Y.2d 836 501 N. Y.S.2d 646 (1986). Plaintiff furher must demonstrate that defendants ' negligence See Howard was a substantial cause of incident. Poseidon Pools, Inc. 72 N. v. 2d 972 534 Y.S.2d 360 (1988). In seeking summary judgment dismissing the Verified Complaint , defendants have the initial burden of establishing that they did not create the alleged dangerous condition and did not See Pelow have actual or construction notice of it. Tri-Main Development 303 AD.2d 940 v. 757 N. Y.S.2d 653 (4th Dept. 2003). Based upon the evidence and legal argument presented to the Court in its motion , the Court finds that there are issues of fact as to whet4er defep.dants created and had actual or constructive notice of the condition that allegedly caused plaintiff Juana Marisa Gina s slip and fall and resulting injuries; to wit , the alleged wet and greasy condition on the subject dance witness , floor. According to the EBT testimony of non-pary Patricia Freudenberg, submitted by plaintiffs in their opposition papers , at once point while she and plaintiff Juana Marisa Oina were at defendant 010 , a drink was spiled on the dance floor and somebody employed by defendant 010 came to mop up the area of the spill. See Plaintiffs ' Affirmation in Opposition Exhibit E p. 19. Ms. Freudenberg testified that she knew for sure that a drink was spilt (even though she did not see the actually spiling of said drink) because somebody came to mop in the middle of people dancing. See Plaintiffs ' Affirmation in Opposition Exhibit E p. 20. Ms. Freudenberg added that she pointed out the wet spot on the floor where plaintiff Juana Marisa Oina to a gentleman in a suit whom she believed to be an employee of defendant 010. See Plaintiffs ' Affirmation in Opposition Exhibit E p. 26. Ms. Freudenberg furher stated that three- quarters of the area in front of the stage (or two to four feet in size) on the dance floor was wet as if someone had knocked a liquid substance off of said stage. [* 8] Additionally, according to the Affdavit of Lisa Marie Oina , daughter of plaintiff Juana Marisa Oina , while she and her mother were at defendant 010 , at approximately 10:00 p. , she noticed a nightclub employee mop the area where the food had been displayed right in front of the stage area not too far from where my mother and I were standing. Shortly thereafter my mother stared dancing away from us , slowly stepping into the area that had just been mopped. As she was slowly dancing backwards at a very nonchalant pace , her feet slipped out from under her as if she was all of a sudden standing on a sheet of ice. She fell backward catching her body weight on her right wrist. I ran to my mother immediately and saw the incredible injury she had suffered to her right wrist and also noticed at the same time the wet and greasy area that she was lying in. This was also the same area that had just been mopped prior to her stepping into the area. The spot where she fell was wet and slick. In See Plaintiffs ' Affirmation in Support Exhibit Gloriav. MGM Emerald Enterprises, Inc. 298 AD. 2d 355 , 751 N. 2d 213 (2d Dept. 2002), the Cour affirmed the lower cour' s finding of summar judgment for defendant in a case where plaintiff slipped on a liquid substance on the dance floor of a restaurant and nightclub owned by defendant and fractured her wrist. However , in the Cour' s decision it found that there was no proof as to how long the substance had been present on the floor prior to plaintiff s fall , nor were there any findings that defendant had actual notice of the alleged See id. dangerous condition which caused the plaintiffto fall. Additionally, the Cour stated that the affdavits from two witnesses to the accident also failed to establish that the floor where the plaintiff fell was wet for any period of time prior to the accident. Contrar to the facts in Gloria v. See id. MGM Emerald Enterprises, Inc. , supra in the instant matter both non- party witness Patricia Freudenberg and plaintiff Juana Marisa Gina s daughter Lisa Marie Oina , stated that , right before the subject accident , an employee of defendant Glo had been mopping the subject area and that said area was stil wet and greasy after plaintiff Juana Marisa Oina s fall. Said testimony clearly presents issues of fact as to whether defendants [* 9] created the condition which caused the subject accident and whether they had actual or v. See Brown construction notice of said condition. Outback Steakhouse 39 AD. 3d 450 , 833 S.2d 222 (2d Dept. 2007). The Court fuher finds that there are indeed questions of fact as to whether defendants negligently mopped the dance floor without warning plaintiff Juana Marisa Gina (or , for that matter, any of the other patrons of the nightclub that evening) of the alleged wet , slippery and hazardous condition of the area of the dance floor that had just been mopped. There has been no evidence submitted that defendants placed cones or signs in the area that had just been mopped or cordoned off said. The question of whether a condition upon the premises under control of a defendant is suffciently hazardous to create " liability" is generally a question to be resolved by a jur v. See Argenio facts paricular to the case. Metropolitan Transp. Auth. 277 A.D.2d 165 , on the 716 Y.S. 2d 657 (1 st Dept. 2000). It is the existence of an issue , not its relative strength that is the critical and controllng consideration in the determination of a summar judgment motion. Barrett v. Jacobs 255 N. v. Cross Y. 520 (1931); Cross 112 AD. 2d 62 491 N. See 2d 353 (pt Dept. 1985). The evidence should be construed in a light most favorable to the part moved against. See Weiss v. Garfield 21 A. D.2d 156 Dept. 2000); 2d458 (3d Dept. 1964). Summar See Vandewater judgment is seldom appropriate in negligence cases. 716 N. Y.S.2d 495 (4 249 N. Connell v. v. Sears 277 AD.2d 1056 Buitekant 17 AD.2d 944 234 N. Y.S.2d 336 (1 Dept. 1962). Accordingly, defendants ' motion , pursuant to CPLR 93212 , for an order granting them summary judgment and dismissing plaintiffs ' Verified Complaint on the grounds that plaintiffs , have failed to identify a defective condition that was the cause of the alleged accident and that plaintiffs have failed to establish actual or constructive notice of an alleged defective condition is hereby DENIED. [* 10] All paries shall appear for Trial in Nassau County Supreme Cour , Differentiated Case Management Part (DCM) at 100 Supreme Cour I?rive , Mineola, New York , on April 25 , 2012 at 9:30 a. This constitutes the Decision and Order of this Cour. DENISE L. SHER, A. ENTERED Dated: Mineola , New York MAR 19 2012 March 15 , 2012 NASSAU COUNTY COUNTY CLERK' S OFfICE 10-
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