Blaustein v Gristede's Foods, Inc.

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Blaustein v Gristede's Foods, Inc. 2012 NY Slip Op 30869(U) April 2, 2012 Sup Ct, NY County Docket Number: 114461/08 Judge: Judith J. Gische 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] .PART. , I '.a, Index Number : 1 14461no08 BIAUSTEIN, LINDA H. VS . GIUSTEDE'S FOODS SEQUENCE NUMBER : 001 SUMMARY JUDGMENT FILED' APR 03 2012 NEW YORK COUNTY CLERK'S OFFICE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 10 X - _ _ - - I - - - - - - _ _ c _ _ _ _ _ _ _ _ _ _ _ _ _ I I _ _ _ _ _ _ _ Plaintiff, - agaimt Decision and Order Index No.:114461/08 Seq. No.: 0 0 1 LINDA H. BLIIUSTEIN, - Preerent : GRISTEDE'S FOODS, INC. and GRISTEDE'S OPERATINQ CORP., J.S.C. This ia a personal injuxy action. Itreauc was joined and plaintiff filed the note of i s m e March 23, 2011. Premntly before the court is a timely motion by U e f e n h t a for mumnary judgment dimiesing plaintiff Linda H. Blauatein'e complaint. (CPLR § 3212; Brill Y. , Ci t v of New WQ& 2 NY3d 6 4 8 [ 2 0 0 4 ] ) . Brckground on November 2 9 , 2 0 0 7 , at approximataly 9 : 4 5 P.M., plaintiff entered Into defendanter' supmarket, located at 2 0 2 East 96th Street, New York, New York (the Supermarket). As plaintiff entered the Supermarket, she proceeded towards the fihopping carte located by tho cash registere at t h e front of the store. Page 1 of 5 As ahe [* 3] walked towards the ehopping carts, plaintiff clairnB she slipped on a mushy, "baby f o d l s h type" aubstanca, causing her to fall (Noticc of Motion, Exhibit B, Plaintiff'e Depoeitlon p . 4 7 ) . Plaintiff c l a i m that she w a looking atraight ahead, and did not ~ see the subetancc a3 t she made her way towards the shopping carts ( z d . ) . After her f a l l , plaintiff claims ehe noticed at least one piece of glass in the area where ehc f e l l . At the t i m e of t h e accident, Thomas NJPIOWB, s e l a t a n t manager a of the gupermarket, was assieting another customer i n the firfat aisle Notice of Motion, Exhibit C, Th~meNsowa's Deposition p . 35). After the accident, one of the caehiers called Mr. Neowa over tha Intercom to come to the f r o n t of the store (Id- at 3 8 ) . When Mr. Neowa arrived, he observed plaintiff on the floor, bleeding from the knee (Id. at 39). Mr. Nsowa inquired if plaintiff needed an ambulance, to which plaintiff allegedly replied ' o ' n. (Id. at 49). Plaintiff ahowad M r . Naowa the piece of glaee eha claims to have landed on (Id. at 50). Mr. Nsrowa testified at his depoeition that after the incident, he personally ewept the m e a t o m e whether there waa any other broken glaes. He stated that although he slwept "the whole place,m he did not find any broken glass or any mushy substrance (Id.). Mr. N m w a taok t h e plaintiff's information, and filled out an accident report. In hier deporaition, M r . Nsowa t e s t i f i e d that during a typical night Page 2 of 5 [* 4] shift at the Supermarket, there would be at leaet five people, including h i m e l f , who would -walk the floor and m a k e sure the floors were clean" (Id. at 2 8 - 2 9 ) . As a reeult of the accident, plaintiff claims she saustained serious injuries to her right leg anU right knee. Dircuorion Where a defendant is the proponent o f a motion for erummary judgment, the defendant m e t eetabliah that the came of action has no merit, slufficient to warrant the court, as a matter of law, to direct judgment in iter favor (Bueh v. St. Claire'er Hosp., 8 2 NY2d 7 3 8 , 739 [1993]; Wincgrad v . New York Univ. Mad. Ctr., 64 NY2d 851, 8 5 3 [1985]). The defendantfa motion must be denied if it fails to produce admiasibls evidence demonstrating the absence of any material iereuee of fact (winegrad v. New York Univ. Mad. aupra; Zuckerman v. C i t y of New York, 4 9 NY2d 5 5 7 , 562 Ctr., [19801; Silverman v. Ptrlbinder, 307 AD2d 230 Ilst Dapt. 20031 ) . W e the defendant move8 for summary judgment in a "sllphn and-fall" case, it ham the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of i t s existence for a erufficitnt length of time to discover and rsrnedy(8lrbaum v New York Racing Assn., Inc., 57 A2338 5 9 8 , 598 C2d Dagt Z O O S ] marks and citations omitted]). [internal quotation Only after the movant has satirafied thiB threshold burden will the court then examines the Page 3 of s [* 5] sufficiency of the plaintiff's opposition rernedy(Blrnbaum v New York Racing A w n . , Inc., supra) . To meet the this burden, defendants m e t offer aome evidence erhowing of when the area in quaartion w e l a s t cleaned or ar inepected relative to the time of plaintiff's fall (Id. at 5 9 8 - Defendants have not met this burden. 99). Mr. Naowa's deposition teetlmony only refers to the general practice of impacting the atore (Notice of Motion, Exhibit Thomae NBOWa'B Deposition p . 28-29), C, and not to any Specific inspection of the area in question on the day of, and prior to, the accident. NaOW1 Nor does t h e supplemental mworn affidavit by Mr. prove, a a defendants claim, that based upon him usual practice, Mr. Nsowa muat have Inspected the area where plaintiff fall no more than 15 to 20 minutee before the accident occurred and, therefore, the store would have lacked sufficient time (i.e constitute constructive) to have addreaaed t h e dangemua conditions ( i . e the "baby foodish" eubstance)alleged. A t bast, all that defendants have established is what Mr. Nmowa'm practice is E ~ ~ t a b l i s h i nwhat t h e i r umal practice I s , however, doas not g eliminate triable issuea of fact. In her supplemental affidavit, plaintiff e t a t e n that after she fell, she noticed that t h e floor around her waa dirty and had visible wheel marks. She also noticed of t h e substance she slipped on was w e t but the eUgas Page 4 of 5 [* 6] were a i e r . cqndition) Thus, she contenda t h e substance (and dangerous W ~ B on the ground for Br e on time. Though defendanti4 discount the sworn affidavit aa "self aeming," it is not contradicted by her deposition testimony and her credibility must be assesaed by the trier of fact. Having f a i l e d to prove that plaintiff's accident was not due to a dangerous condition at the premises which could have been but was not promptly taken care oft defendants' motion for eummary judgmant must be denied. Plaintiff h a , in any event, raieed issues of fact that warrantor denial of the motion. Although defendant haa raised other pointa about plaintiff'B accident rtconatruction axpart making conclusory statements, hia opinion is not the basie for t h e court'^ decieion to deny t h e ' motion. Therefore, defendanta' motion is denied. Since the note of iasue hae been filed, plaintiff shall Beme a copy of this decision and order on the Office of Trial Support BO third case may be achsduled for trial. Any r e l i e f not epecifically addreaaed is hereby denied. Thie constitutea the decierion and order of the c o u r t . Dated: New Yosk, New York wrfl 7 I 2012 w So Ordered: Hon. Judith FILED G ache, J S C

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