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
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[* 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
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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
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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
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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
