Boyd v Gristedes Food, Inc.

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Boyd v Gristedes Food, Inc. 2012 NY Slip Op 31758(U) June 27, 2012 Supreme Court, New York County Docket Number: 110748/2009 Judge: Paul Wooten 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. NNED ON 71612012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: - NEW YORK COUNTY PART HON. PAUL WOOTEN 7 Justlce Judgment. Notlce of Motion/ Order to Show Cause - Affidavits Answerlng Affidavits Reply Affidavits - - Exhiblts (MemQ) PAPERS NUMBERED Exhiblts ... I ,2 * - Exhlblts (Memo) 3 4 7 20 p.m.' in which plaintiff allege I The time of the accident used by th plaintiff and Matko The Ony depositioh testimony regardi aint, verified only by her attotn "[a] 'bare allegation' cohtained in an issue pf fact" (Irirarry v, Weller, 96 ADAd testified that the accident occurred (Notice of Motion, exhibit B at 19). Pagg 1 of 8 I I [* 2] I chicken warmer display in the deli section at defendant s supermarket. PlAintiff alleges that the I incident resulted in phy,siaaL injuries. I 14 1 \ The chicken warmer display holds cooked chickens and chicken parts. Defendant s I employees enclose the chickens in plastic containers atthe deli counter before qlacing them in the chicken warmer display. The chickens are usually transferred from the deli Founter ts the chicken warmer display between 5:OO p.m. and $30 rJ.m. Plaintiff testified at her deposition that she did not see the grease ptior to her fall and does not know how Ion Mption, pxhibit B at 41, chicken grease splatt his job respopsit$litie$, t!~ beginniilg at 4 4 0 p.m. .(id. qt IO). Prioi tp lhd ; I the accident (id. at 42-43). Thereafter, Matka and plaintiff comflleted the Customer Incident I Report. Matko testifi l h - I I [* 3] "saying that this is exactly what happerred" (id. at 51). There have been no prior compl$ir;lts or incidents regar near or around the chicken warmer. Plaintiff testified that she shops at the stwe every day and has never noticed any chiqkev grease on the floqr priqr to the accident (Notice of Matioh, t exhibit B at 24-25, 52). I Defendant argues matter of law, because pl the accident, or that it ha Specifically, defendant a grease to spill on the flo pldintiff's awident Plaintiff argq of fact regarding whether defendant grease on the floor whil displqy, whether defen patrons regularly trave r l of its summa transcriptsi of plaintiff and1 efendant 's Response 2010, the Customer In plaintiff and Matko. Sumrrlary judgm fact exist and the movant is ehtitled to judgmgnt as a matter of law (See I I [* 4] Hosp , 68 NY2d 320, 324 [1986]; Andre v l%neroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must make 4 prima facie shawing ,qf entitlement to.jyt&v$n a matter of law, tendering sufficient evidence in admissible form dbrnonstrating the absence of material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1945]; CPLR 3212[b]). A failure to make such a showing requires denial of the motion, redardless of the sufficiency of the ppposing papers (See Smalls v AJI M u s . lnc., 10 NY3d 733, 734 [2008]). Once a prim3 facie showing has bqen made, hbwqver, the burden shifts tg the honmoving party to produce evidentiary proof in admissible form sufficient to establish the existence af I material issues of fact that require a trial for resolution (Giuffrida v Citib~nk Csrp., 100 NY2d 72, 81 [2003]; see also Zuckerrnd I 3212[bl). When deGiding 9 any triable issues exist, Cenfruy-pox Film Carp., 3 NY2d most favorable t o the nonmoving party, ahd gives the nqnmoving party the benefit Qf all reasonable infer NY2d 625, 626 [1985]9. If there i judgment should be dufy to maintain it9 propeUy<iha It is well-esfabligtled tbdt a la reasonably safe condition under t h e exisfing circwmstancqs,lwhich include the likelihood of I injury to a third party, t h e potential t I n of avoiding t h e risk (S ). A defendant who mblr burden of making a prima facie demons that it neither oreated f I 1 age4bf 8 [* 5] I$ nor had actual or constructive notice of its existence (id. at 500; Tkach v Golub C o p . , 265 It I AD2d 632, 632 [3d Dept 19991). In order to Gonstitute constructive npfice,.a defqqt qyst be visible and apparent and it must exist for a sufficient length or time prior to the accident to allow the defendant to discover and remedy it (see Perez v Bronx Park South Assoc., 285 AD2d 402, 403 [lst Dept 2001I). Once a defendant establishes prima facie entitlement to such relief as a I * matter of law, the burden shifts to plaintiff ts raise a triable issue of fact as t4 the creation of I the defect or notice thereof (Smith, 50 AD3d at 50Q). It is well-settled, however, that rank I speculation is not a substitute fqr the evidqntiav proof in admissible form that is rgquired to establish the existence of a triable quostiqp of material fact (Castore v Tuttd Bend Restaurant Inc , 77 AD3d 699, 599 [Ist oept 20101). I ng thaf it n e i f h r areated t Defendant has met its purportedly dangerous condition tha and fall, nor had actha l or constructive notice of its eyistence. positipn teqtitnony iqclic performed a routine walkthrough of I minutes during his shi p.m. to 12:OO a.m. On the da atdy 7:lO p.m., du begiening at 7 : O O p.m. which G Q the area shortly aft any ehicken greaw on the flbo and did not see any chicken greqw. T~-I prima facie, defendant s entitlement to j 500-01 [defendant met ini monitored regularly and n post-accident inspection$ In Revocable Trust, 86 AD3 finds that; this evidence is suffic t as a matter Qf law (see Smith, 50 AD2d a I [* 6] evideece of its maintenance activities on the day of the accident, and speqifically that the dangerous condition did not exist when the area was lqst linspected or cleaved before plaiptiff fell ]; Raghu v New York City Hous. Auth., 72 AD3d 490, 481-82 [Ist Dept 20101). In opposition, plaintiff has failed to raise a triable issye of fact 3s to whether defendant created the dangerous condition, Her evidence providgs nothing more than merq speculation I as to the cause of the accident and offers nothing indicate that defendant created . I I . the I hazard (Smith, 50 AD3d at 501). While cilrcumstantial evidence of causation or negligenqe Is sufficient even if it does not negate remote possibilities that the injury was not caused by the defendant (Dillon v Rockaway Beach Hosp. & Dispenssry, 284 N.Y. 17GI 179 [1940]), the . poSsibility that debris fou _ i . is not remote (see Mara/os v ways, Inc., 189 fiP employees placed the enclO a hqlf to two hours prior at the time of t h e accident, d&s not require the infer defendants. (See Morales, 186 AQ2d at 408). Moreover, 1 the defendant s placement o fqiled to present An expert & I I Tkqch, 265 AD2d at 632 [holding t di$play IS a design Onstructive noti& of tb I I I [* 7] I 1 chicken to the Chicken warmer display until the time that $hq fell, a period of approximately one 1 ' 1 t and a half to two hours. Plaintiff aver9 that this is 8 sufficient mount Qf$me to constitute constructive notice. However, plaintiff pre9ents no evidence indicating that the chicken grease was spilled on the floor at the time the chickens were transported to the chicken warmer display. In fact, plaintiff testified that she did not see the chicken grease until after the acaident. Plaintiffs failure to present evidencfi td inqiicate how long the GhiCken grease was ori the floor i4 I I fatal to her allegation that deferldant had constructive notice of the dangerous cqndition (see I Kane v Human Sew Ctr., Inc., 186 Ab2d S39,539 [2d Dept 19921 [tbe mere existence of a I puddle on the floor was insuffiqient t4 impute actual or constructive notipe to defendant where . r plaintiff 'nqver noticed the puddle urltil At the puddle had been on the floor for any I Lastly, Plaintiff's re 280, 285 [4th Dept 19951) summary jdgrneht award, maintenance company ow ther (he grounds maintdn root that resulted in the bike rideis gc two respects. First, in the pre the Chicken grease was pr significant period of time. wa$ tegularly inspected, in According Iy , defendant ' tanted. For these reasons and upon the hat the locqtion of the accide 1 [* 8] ORDERED that defendant's motion for summary judgment dismissing the complaint is granted; a p d it is further, I I , r t t ORDERED that defendant shall serve a copy of this Order, with Notice of Entry, upon plaintiff and upon the Clerk of the Court who is directed to enter judgment accordingly. This canstitutes the Decision and I \ Dated: b OkJ: ,/L I

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