McGuffie v Costco
2012 NY Slip Op 31094(U)
April 12, 2012
Sup Ct, Nassau County
Docket Number: 008790/10
Judge: Randy Sue Marber
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SHORT FORM ORDER
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
Present:
HON. RANDY
SUE
MARBER
JUSTICE
TRIAL/IAS PART 14
Plaintiff
Index No. : 008790/10
MAE McGUFFIE
Motion Sequence...
Motion Date... 02/24/12
-against
COSTCO , COSTCO WHOLESALE
CORPORATION , COSTCO WHOLESALE
MEMBERSHIP , INC. , and TIMES SQUAR
STORES CORPORATION
Defendants.
Papers Submitted:
Notice of Motion.................................
Affirmation in Opposition...................
Affirmation in Reply............................
Upon the foregoing papers , the motion by the Defendants , COSTCO, COSTCO
WHOLESALE CORPORA TION (" COSTCO"
and COSTCO WHOLESALE
MEMBERSHIP , INC. ("MEMBERSHIP" ), seeking an order granting summar judgment
3212 and dismissing
pursuant to CPLR
the Plaintiffs complaint , is
determined as
hereinafter provided.
The Plaintiffs complaint alleges that on October 3 2009 at approximately 3 :30
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, she was caused to slip and fall on a wet floor in the customer service area of the
COSTCO tire shop located at 605 Rockaway Turnpike, Lawrence , New York. The Plaintiff
commenced this action by the fiing of a summons and verified complaint on May 5 , 2010.
Issue was joined by the service of the Defendants ' verified answer on June 25,
2010. The
Defendants seek dismissal ofthe Plaintiff s complaint on the grounds that the Defendants did
not have actual or constructive notice ofthe alleged dangerous condition , and , further , that
the Plaintiff s claims are barred by the " storm in progress " rule. The Defendants also submit
that the Plaintiff s claims against the Defendant , MEMBERSHIP , should be dismissed on
the additional ground that said Defendant had no duty to maintain the premises.
The Plaintiff testified at an Examination Before Trial that on the day of the
accident
, it was raining when she arrived at COSTCO.
(See
EBT Transcript, dated May 26
2011, page 15, attached to the Defendants ' Notice of Motion as Exhibit "
entered the COSTCO tire shop through the customer service entrance.
(Jd.
) The Plaintiff
at page 16) After
waiting in a chair in the customer service area for about five to ten minutes , the Plaintiff
decided to go out to her husband'
s car to obtain an umbrella.
at page 25) To leave the
(Jd.
customer service area, the Plaintiff walked around a divider that separated the customer
service area from the area where the cars were being
serviced.
(Id.
at page 25) While
attempting to walk around the divider, the Plaintiffs left foot slipped and she fell on the wet
floor.
(Jd.
at page 26) The Plaintiff testified that she was looking at the floor when she fell
and she observed many spots of water on the floor at that time.
(Id.
at page 32) According
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to the Plaintiff
, she was not able to alter her path because the floor was wet all over.
page 36) The Plaintifftestified
fell.
that she did not
(Jd.
know how long the floor was wet before she
at page 34) After the Plaintiff fell , she left the tire shop and went to the main office
(Jd.
to complete an Accident Report.
at pages 42- 44) The Accident Report states that the
(Jd.
Plaintiff slipped and fell in the tire
shop.
(See
Accident Report , dated October 3, 2009,
attached to the Defendants ' Notice of Motion as Exhibit "
On behalf of the Defendants , Shawn Latimer, a COSTCO employee , appeared
for an Examination Before Trial on May 26 , 2011. Mr. Latimer testified that on the day of
the accident ,
(See
it was drizzling on and off.
Transcript , dated May 26, 2011 , page 11
attached to the Defendants ' Notice of Motion as Exhibit "
just before the Plaintiffs accident.
(Id.
) It had just started to drizzle
According to Mr. Latimer , there is no custom or
practice at the tire shop of placing mats on the floor when it rains. He further testified that
on the day of the accident , just before the Plaintiff fell
, the floor was completely dry.
(Jd.
page 23) There was a sign before entering the work area of the tire shop that read Do Not
Enter
(Jd.
at page 16) Mr. Latimer did not see the Plaintiff fall. After hearing a loud noise,
Mr. Latimer saw the Plaintifflaying on the floor in the first bay in the work area of the tire
shop.
(Jd.
to clean it up.
at 26) In the event there was a spil in tire shop, Mr. Latimer had access to a mop
(Id.
at page 25) On the day of the accident , no one mopped up the floor
because , according to Mr. Latimer there was nothing to mop up
(Jd.
at 25)
The Defendants contend that they neither created the condition nor had actual
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or constructive notice of same. The Defendants submit that the condition was visible and
apparent and did not exist for a sufficient lengt of time to permit the Defendants ' employees
to discover and remedy the problem. The Defendants further contend that, as a premises
owner, they are not required by law to constantly maintain dry floors by continuously
mopping the floor or cover the entire floor with mats during a storm in progress until such
time as the weather condition has abated. As such , the Defendants argue , that COSTCO had
no duty to mop the floor or cover the floor of the customer service waiting area while the
rainstorm
" was stil ongoing.
(See
Affirmation in Support , dated October 6 , 2011
23)
With respect to the Defendant, MEMBERSHIP , counsel for the Defendants
states that the Defendant , COSTCO, maintains exclusive control over the warehouse located
at 605 Rockaway Turnpike , Lawrence, New York. Further, the Defendant , COSTCO
admitted in its verified answer that it managed and controlled the tire center at said location.
(See
Verified Answer, dated June 24 , 2010, attached to the Defendants ' Notice of Motion as
Exhibit "
) Based upon the Defendant, COSTCO' s exclusive control over the premises , the
Defendants seek dismissal of the
Plaintiff s claims as against
the Defendant
MEMBERSHIP.
In opposition, The Plaintiff contends that issues of fact exist, arguing that the
Defendants did have notice of the condition complained of and also created the condition
which caused her to slip and fall. The Plaintiff fuer contends that despite the fact that it
had been raining all morning, the Defendants failed to install mats in the customer service
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area ofthe tire shop. The Plaintiff avers that the Defendants created the hazardous condition
in that the Defendants ' employees may have tracked in the water from outside. Moreover
the Plaintiff argues that the dangerous condition was created by the Defendants ' employees
when cleaning the floor with a scrubber the morning of the accident. Based upon these facts
the Plaintiff urges that it is highly probable that the Defendants ' employees created the
dangerous condition, and , as such , the Defendants ' motion for summary judgment should be
denied.
Additionally, the Plaintiff argues that the Defendants failed to show when the
area where the Plaintiff fell was last inspected or cleaned relative to the time ofthe
The Plaintiff analogizes the instant matter to
Birnbaum
v.
accident.
New York Racing Assn. , Inc. , 57
D.3d 598 (2d Dept. 2008), where the Appellate Division , Second Departent , denied
summar judgment to the defendant based upon its failure to offer evidence as to when the
subject location was last cleaned or inspected relative to the time of the accident.
Sumary Judgment is a drastic remedy and should only be granted where there
are no triable issues of fact.
Andre
v.
Pomeroy,
35 N.
2d 361 (1974). A Defendant
who
moves for summary judgment in a slip and fall case has the initial burden of making a prima
facie showing that it neither created the hazardous condition nor had actual or constructive
See Joachim
notice of its existence for a sufficient length of time to discover or remedy it.
v. 1824
228 A.
Church Ave. Inc. 12A. D.3d 409
410 (2dDept. 2004);
Goldman
v.
Waldbaum, Inc.
2d 436 (2d Dept. 1998). A Defendant who had actual knowledge of an ongoing and
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recurring dangerous condition can be charged with constructive notice of each specific
Freund
reoccurrence of the condition.
Osorio
(2d Dept. 2002) quoting
v.
v.
Ross-Rodney Hous. Corp. 292 A.
Wendell Terrace Owners Corp.,
276 A.
2d 341
342
2d 540 (2d Dept.
2000).
The Defendants have established their prima facie entitlement to summary
judgment as a matter of law. The Defendants set forth sufficient evidence that they neither
created the hazardous condition nor had actual or constructive notice of its existence for a
sufficient length of time to discover or remedy it. In opposition the Plaintiff
failed to raise
an issue of fact.
Preliminarily, the Plaintiff failed to submit
any evidence to oppose the
Defendants ' contention that the Defendant , MEMBERSHIP , did not maintain or control the
premises where the
DISMISSED
accident occurred.
Accordingly, the Plaintiffs
complaint is
as to the Defendant , MEMBERSHIP.
With respect to the Defendant, COSTCO, the Defendants submitted evidence
that the floor was dry immediately prior to the accident. Furher, the Defendants submitted
sworn testimony that it had just started drizzling prior to the time of
event there was a spil
on the floor ,
the accident. In the
the Defendants ' employees had access to a mop to clean
it up.
The Plaintiff failed to set forth any evidence regarding the length of time the
hazardous condition existed or whether the Defendants had any notice of same. The Plaintiff
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testified that , although she observed the water on the floor before she fell , she was not aware
of the length oftime the floor was wet prior to the accident. The Plaintiff
also testified that
she did not hear anyone make any complaints regarding the condition ofthe floor prior to her
accident. Based upon a review ofthe record , the facts presented by the Plaintiff raise issues
that are trivial in nature.
Moreover
, the case of
distinguishable. In that case ,
the
Birnbaum , supra relied upon by the Plaintiff is readily
employee on behalf of the defendant testified as to its
general daily cleaning practices without proffering any evidence as to when the area was
cleaned or inspected that particular day. To the contrary, in this case , a COSTCO employee
testified that the floor was observed and that after observing the floor, cleaning it was not
necessar. He further testified that in the event there was a spil , he had access to a mop to
clean same. In opposition , the Plaintiff failed to proffer any evidence that raised a material
issue of fact.
Accordingly, it is hereby
ORDERED , that the Defendants ' motion seeking an order granting summar
3212 and dismissing the Plaintiffs complaint , is GRANTED.
judgment pursuant to CPLR
This constitutes the decision and order of the Court.
DATED:
Mineola, New York
April 12 ,
2012
Hon. Rand
ENTERED
APR 1 6 2012
NASSAU COUNTY
COUTY CLERK" OfFICE
