Petretta v Nobu Rest.
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Petretta v Nobu Rest. 2012 NY Slip Op 31168(U) May 1, 2012 Supreme Court, New York County Docket Number: 115489-08 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. SCANNED ON 51212012 [* 1] \ \ I i I I [* 2] BUPMMW COURT OF THE STAT1 OF N W YORK E COUNTYOF Nww YORK:IAb PART 10 Sandra Petretta and Patrick Patretta, DECISION/ O D R R E Index No.: Seq.No.: Plaintiff ($1, -against- PW8ENT: Jion.m h J. G l s d ~ J.S.C. Nobu Restaurant, Nobu Gorp., Nobu Aseociates, L.P., Nobu 57 LLC, Nobu Next Door, LLC, Myriad Restaurant Group, Fine Arts Housing, Inc., et al FILED MAY 02 2012 Dsfendant (8). 1 _ _ 1 _ 118489-08 004 X NEW YORK Recitation, as required by CPLR Q 2219 [a] of the papew considered inFR#kVeWK S OFFICE this (these) motlm(s): PSperO Numbered Nobu and FHA nlm (CPLR 3212) w/DCL affirm, exhe . . . . . . . . . . . . . . . . . . . . . . . . . 1 SP opp w/JMP affirm,JCC a m , axhs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Nobu and FHA reply w/DCL affirm, exhs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Stlp to ad] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Upon the ibmgoing papers, the decision and order of the court i as follows: s OlSCHE J.: Thls is an action by Sandra Petretta ( plaintm)for personal Injuries. Patrick Petretta, plaintiff s husband, asserts a derivative action for loss of sewloas. Issue w88 Jolnsdand the note of Issue was flld certifying that dkovery was complete. Preeently before the court I a timely motion for summary judgment by defendants Nobu s Restaurant, Nobu Associatee, L.P. ( NobuB) and Fine Arts Houslng ( T A H )(collectively that will be decided on the merits since the tfme requirements of CPLR dafondants~ 3212 were adhemd to (CPLR 0 3212; mll v. Citv of New Ynrk, 2 NY3d 648 [2004]). -Page 1 of 11- [* 3] Plaintiff discontinued her claim agalnst Nobu Corporation, Nobu 67 LLC and Nobu Next Door, LLC only, as per stipulation dated Mary 7,2009. Plaintiff also discontinued her claims against D A N h4yriad HospitalityCorp., as per stipulation dated June 2,2009. Facts and Arguments Plaintiff contends she glllpped on a liquid substance and fell inside the Nobu Restaurant on December 2, 2005, sustaining an ankle fracture. FAH is the owner of the building located at 105 Hudson Street, New York, New York, where Nobu Restaurant I located. Them i commercial lease between FAH and Nobu dated s s December 1,2005 ("lea="). FAH contends it is an aut-of-pasmian Iandlord and, therefom owed no duty to plaintiff. Both defendants argue that there I no evidence s that any Nobu employee created or had notice of a dangerous condition (Ilqufd) on the floor of the rastaurant, or that they failed to correct it within a reasonable period of time thereafter, They claim further that plainWs allegation, thet the are8 whem aha fell was dimly lit, is lnsufficlent, as a matter of law, to impoee liability. Plaintiff provided a bill of particulars. She WEIS also dspoaad. Plaintifftestified that the accident occurred as she was descending from the dining area, and heading to restroom. Pfaintiff denied seelng any wetness In the area where she fell when she arrived at the restaurant and was seated for dinner. According to plaintiff, aha enjoyed some wine with dlnner and was wearing (as she dcacribed it) wedge type shoes, wlth 1- 1 H inch heels. After they ate dinner and before dessert, plaintiffdecided to go to the restroom, necessitating her going down the 8anw step she had traversed before dinner. As her "foot hit the floor" she "sllppd and -Page 2 of 11- [* 4] went down." Although plaintiff could not describe how it happened, she stated that her "fegsgot tangled." Plaintiff testifled that she had b w n looking fonrvgrd when the accident occurred and notlcad customers and wail staff ahead of her. She was not looking down. Furthermore, although she could not recall which foot slipped, she did recall falllng backward3 "more onto her butr than her back. Plaintiffstateid that after 3he fell, she felt a wetness under her left hand which Is when she noticed a liquid subatancs. She did not sniff at tha Ilquld or observe any smell to It, but she did notice that the liquid . w s not sticky. When asked whether any other hazard or thing contributed to her accident, she replied "very dark," without elaborating. When asked the same question agah, she - simply replied "very dimly lit," When pressed about what she meant the table? where she was walkfng7- plafntlff responded "Actually, in general, everything... She a d d d that "the area w h m 1 walked, where I fell' eeemd "a lMe less lit." Plaln#ff wa8 also asked whether aha believed if there had been better Iightlng she would have seen tha liquid she, replied "possibly." According to plaintiff "the wood flooring in that area,. referring to the service bar area, akso contrlbuted to her fall. When asked how, she reapondad that ufhem'aliquid on it, it I slippery. And it is dimly lit on top of that.* No s qubatlons were askad of plaintiff about whether, after she fell, she notlcad that her dothlng had gotten wet. Plaintfffs husband did not witness the accident but was deposed and asked questions about condltlons at the restaurant. He testified that the restaurant was dark and that "historically every restaurant i darker." s The waitress ("Grayle") who served plaintiff and the other guests at her table was -Page 3 of 11- [* 5] an eye witness to the accident and she was deposed. Grayle testified that "a female guest stumbled off of the one step that we have that separates the badvoom from the main floor" (referring to plaintiff). She testffied tha plaintiff wearing 2 H to 3 inch heels. Grayle described the happening of plalntifFs accident as if She -"losther balance" and obsewed that plaintiff had "stepped backwards off the step," It appeared to Orayle that plaintfff just "forgot the step was there." Grayle a k atatad that there Is fight strlp right under the step "butyou wouldn't see It if you were standing on top of the step.' Grayle denied there was anything out of the ordlnary in the arm where plaintiff fell, euch BS objects, water or food. Grayle stated that she "conaEantlqchecks for spills on the floor when she la worklng. The Captain of Nobu ("Amma")was also deposed and asked questions about the area whem the accident occurred within Nobu. He testified then, a a aanrice bar ir near that step (about a meter away) and that water la kept at that station. Amma natlced plalntlff fall but only wlth his peripheralvision. According to Amma, plaintiff landed on both feet, almost as H she had Jumped. He stated that it appeared to him plaintiff was drunk because her eyes were "Chlorine . . . she cannot stare at me." He checked the floor immediately after plaintiff fell and aaw no liquid on It. Another waiter ("Fuji0 was present when the accldent occurred but dM not see it happen. He was shown an Invoice for wood floor mpair at the restaurant. The invoice was produced during discovery. The involce states it is to "remove the exj8ting water damaged wood flooring." Fufit testified he only knew a b u t a leaky condition In the basement of the restaurant and did not know anything about t e lnvob. h Pialntmalso provides the affidavitof Joseph C. Cannino, who states he Is a -Page 4 of 11- [* 6] I I licensed professlonal engineer. Canniao oplnes that the step was improperly lit and that thb Is a violation of New York City Administrative Code Q .27-532 [a][73[g]. Ha descrlbed plaintiffs accident as happening when "her foot slipped on the wooden floor of the lower level Justpast the riser." According to Canniuo, the coefficient of friction between plalntiWs shoe and the riser was incorrectwhich is What caused her to dip and fall, compounded by the pmance of the ssrvlce bar In the area where she fell which made it "foreseeablethat water could ba present on the rrubject floor." Dbcusslon To meet their burden on this motion for summary judgment, the defendants must make a prima facb showing of sntltlament to Judgmenta8 a matter of law, tendering sufficient evldence to eliminate any material issues of fact from the case ' [ Win- Few York U U , Ctr., 64 N.Y.2d 851,853 [lQ8S]), Only if t i burden is met does hs it then shift to the opposing party who must submit evidentiary fads to controvert the allsgatlona set forlh In the movant's papers to demonstrate the existence a a triable f issue of fact (Alvarez v. Prqapect Horn, 68 N.Y.2d 320,324[1986]; m a n v, City gf New Yprk, 49 N.Y.2d 557 [1080]). It is well established law that a landowner has 8 nondalsgable duty to maintain tts property In a reasonably safe condition under existing drcumatances, which includes the likelihood of Injury to a thlrd party (psmz v. Bronx Park S m 285 A.D.2d 402 [lst o , Dapt. 20011). An out-of-possession property owner is not llable for injuries that occur on the property unless the, owner has retatned control over the premises or Is contractually obligated to perform rnalntenance and repairs (Orlaw v. Ctty of New Yo& 45 AD.3d 639 [2"dDept 20071). -Page 5 of 11- [* 7] FAH has established that under its lease with Nobu, the Owner only maintained the right to reenter the premises to make structural repairs and for routine matters, like checking the meters. FAH has also establlshed that i did not otherwise m u m e a t msponsibilrty t maintain the dlnlng area, senrice station or step in the restaurant where a the accident took place (McComish v. m o m s t a n Rsataurarrt,56 A.D.3d 534 [2"6 I Dept 20081). There is also no evidenaa tandlrg to show that FAH had any notice of a dangerous condition. The alleged dangerous condition (spilled liquid) was not structural (see Dallas y. 7CWK ha-. LRP 287 AD.2d 304 [Id 2001). Therefore, FAH Dept has met Its burden on hk motion. In an effort to raise an issue of fact, phlnttfl reilss on an invoice for repalm to a water damaged floor In the Nobu dining area. Not only was that invoice dlrected to Nobu, not the owner, but t e watter who was deposed and asked questlona about the h invoice knew nothing about It. Although he recalled there was a M e r problem in the basement, plaintill's contention, that the puddle she slipped on upstairs in the dining room was attributable to and evidence of a chronlc water prablem in the senrlce station, above and that water dripped down into the basement, I complete conjecture. A s motion for summary judgment cannot be defeated by the shadowy semblance of an bsue, rather the parties must lay bare thelr proof (SJ C w l i n v. Glob,34NY2d 338 [iQ741). Therefore, FAH hae proved the claims against it should b~dismissed because it is an out-of-possession landlord, it did not retain control over the p m i m nor did it have notice of a dangerou8 condition. Indeed on this r w r d , the court condudes that nerjther FAH nor Nobu had prior notice of the dangerous conditlon alleged. Plaintiff and the other guests aaatad at her table traversed the step without incident, plaintiff did not -Page 0 of 11- [* 8] notice or complain about there being any wetness on the step prior to her addant and, now that dlsmvery i completed, there is no evidence that any one else complained s about the condltltlon of the step h f o r e plaintifla accident. Prior notice, however, Is not required where a defendant creates or exacerbates the dangerous conditlon alleged (see m o a v. A.D.2d 215 [ 'Dept. 20001; m u m v. CrI Burman As 269 295 A.D,Zd 475 [2"6Dept 20021). Although FAH retained the right to enter the premises to make structural repairs, FAH has proved it was not present when the acddent occurred and its kase with Nobu apeMcally obllgates the owner "to not interfere with Tenant's businass" although FAH can go in to do such things as make structumi rapairs and mad the meters. The lease also provldes that the premises w delivered by FAH to Nobu "as Is"and that such r w things as maintenance and operation of the plumbing system are Nobu's msponalbility. Nobu Is also allowed, under the lease, to make certain alterations to the interior space, as needed (see Lease 750). FAH has, therefore, made a prlma fade showing it is entltled to summary judgment becauae it did not create the dangerous condition alleged. Ptaintiff has failed to demonstrate the existence of a triable Issue of fact that FAH did create the dangerous condition alleged. Therefom, FAH's matIan to dismiss tha wmplaint against it 1 granted. The complaint as agafnst FAH Is severed and 8 dkmissed. A property owner or possessor may be liable for plalnblffs injuries if It failed to properly maintain the premfaes for its antidpated use,- 28 AD2d 691 afd 19 NY2d 840 [lSeS]). As the movhg party, Nobu ha8 a graater burden to produce evidentlary facts than Its adversary (Friend8 of A n w u , ~ a s o cFur Man&. -Page 7 of 11- 146 [* 9] N.Y.2d 1085 [1Q79]). Here, It is alleged that them was a liquid on the step and Nobu d e n k that this dangerous condition existed. There is no direct evidmca about whether there was any liquid on the step or, if BO, how it got there. No one who wa8 - dapoaad including plaintiff- testified that he or she saw a spill occur near the step that plalnttff traversed. Defendants have, therefore, established that it did not m a t e the dangerous condttiin alleged. in opposwon to the motlon, platntmsumbes that, ghren the location of step inside a restaurant and near a sewice atadow ~ o r n e ~ working at Nobu must have ne spilled water or other liquid because of the proximately of the service statlon or that the mMce station somehow leaked water. Although not directly pleaded, plaintiff seeks to establish defendants' liability through circumstantialevidence (asam a n v. kmt jiouse R w W , 29 A.D.3d 302 [ ' l Dept 20081 c i t i n g m a Cole v. T o w . , 303 A.D.2d 186 [l'Dept 20031). The equitable doctrine of ms ipsa laqukurparrnhs an Inference of negligence and, in the proper caw, allows the jury to consider circum8itantial evidence and infer that the defendant was negligent in some unspecifikd way (MmMmmbConst. COL, 7 NY3d 203 [2008]).Lack of notice is not a defense to the doctrine (Mella v New Ynrk Cltv Tr. Auth., 291 AD.2d 225 [l" 20021). Dept Although not pleaded as such, plaintiff seek8 an Inferencethat because the accMent took place in a restaurant Mare water is served, near a service statlon, that Nobu created the condition. This evidence alone will not support such inference either 8s clrcumstantlal evidence of the fact or even under the, lesser requirements of res Ipsa loquifur pinto v. Fish C m.,273AD2d 63 [1It Dept 2 0 1 . 00) Here, the m m fact that the pmmises are a restaurant in which water and -Page 8 of 11- [* 10] 0 bveragas are transported and sewed, does not support plalnttft's dalm that the spill was created by an employes or that the water must have come from the service statfon (pints, v. DFlsh Corp., supra). Defendants' have proved they did not create the dangerous condition alleged and the clrcumstmtial evMence plalntm r e l k on doss not raise triable Issues of fact that defendant8 were negligent In some way. Plaintiff also attempts to raise triable issues of Fact through the sworn affklaa d her expert. Mendants have objected to Cannino's affidavit on the basis of timallness. CPLR 3101 [dJ[l]requires that each party MantZfy each person whom the party expects to call as an expert wlfmss at trlal, but It does not contain a time frame for such expert discloaura. In any event, the court ha8 wlde dlscreffon In allowing a party to introduce expert testimony, despite Its fallure to give the other side proper notice rn Pen- ins, Co.of New Y o k 74 A.D.3d 570 [la 20101). Although the Dept note of iswe was filed, this case Is not yet on the Mal calendar, them is no evidence that plaintiff's delay in providing disclosure about ita expert was intentional or wilful, and the defendants have not shown any prejudice (@mn v. WUljg.cn P a Life Ins. Co. of Nprw Yo*, supra). Therefore, Canniao's affidavit 1 not disregarded as untimely. 8 Cannlno's affidavit kI nonetheleias of lmle value. Like plalnttff, Cannlrro pmumea that the wetness on the step was due to location of the service bar I the n vicinity where plaintiff fell and he opines that this proxlmtty made It "reasonably foreseeable that water wM ber pmssnt on the subject floor.' This not only assumes the u subatance on the floor was water (plaintmonly claimer them wae liquid in the area) this is not the subJect of expert evidence a8 it does not Involve professional or dantltk knowbdgs or skill not within range of ordinary training or Intelligence) @del v. G r m , -Page 9 of I i- [* 11] 84 N.Y.2d 705 [1885]). Other aapects of Cannino's opinion havlng to do wtth lighting and the structure of the step are based entirely upon photographs of the restaurant's Interlor. Canniuo does not mention that he dld a site inspection. Cannluo states that, based upon those photographs, there is no light under the step where plaintiff fell and inadequate lighting caused her accident Grayle testffled at her deposition, however, that there I &trip s fighting under the step, but it cannot easlly be seen if someone i standing right on the s step. H o u t havlng done an on-site inspection and slmply loaklng at photographs, Canni~~ok opinion is of no use in narrowing, let alone, sllmlnating the issue of lighting and Its adquacy. In any event, plaintiff stated that as she stepped down she was "just looking ahead" at the people who were, in the area where she was headlng to. She did not testrFy that she glanced down before she took a &ep. Nor did she testli'y that she glanced down but did not notice the step because it was too dark to see. Although she described the area where the accident happened as being "dark" and "dimly lit,. plaintiffs testimony does not permit an Inference that she would have noticed the liquid substance on the step had the area been better lit me v. La vs , 27 AD3d 397 [lH 2008). Therefore, plaintiff has faibd to raise through Dept her own testimony or Cannlao'a opinion, that the area where she feIl was improperly Ilt and that this was a proxlmate cause of her Injury. Conclusion Dtdendante motion for summary judgment dlsmblng the complaint against them is granted for the reasons stated and the Id of action is dismissed. The c8uw -Page 10 of 11- [* 12] c dartvathe (2"e'cause of action) is dismlased a8 well. The derk shall enter judgment in favor of defendants Nobu Restaurant, Nobu Associates, L.P. and Fine Arts Housing dismissing the complaint. Any relief requested but not specMcally addreaged ia hereby denied. Thls constitutes the decision and order of the court. Dated: New York, New York May 1,2012 So Ordered: -Page 11 of 11-
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