Khorana v Stop & Shop Supermarket Co. LLC
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Khorana v Stop & Shop Supermarket Co. LLC 2012 NY Slip Op 31878(U) July 3, 2012 Sup Ct, Nassau County Docket Number: 011655/10 Judge: Randy Sue Marber 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] SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. RANDY SUE MARBER Justice TRIAL/IAS PART 14 MEENAKSHI KHORANA Plaintiff Index No. : 011655/10 Motion Sequence... Motion Date... 04/25/12 -against- THE STOP & SHOP SUPERMT COMPANY LLC. d//a ala SUPER STOP AND SHOP SUPERMRKT , STOP AND SHOP , INC. , and STOP AND SHOP SUPERMRKT Defendants. Papers Submitted: Notice of Motion........................................... Affirmation in Opposition............................. Affirmation in Reply...................................... Upon the foregoing papers , the motion by the Defendant , THE STOP & SHOP SUPERMT COMPANY LLC. d/b/a a/k/a SUPER STOP AND SHOP SUPERMRKT, STOP AND SHOP , INC. and STOP AND SHOP SUPERMT Stop & Shop ), seeking an Order of this Court awarding them summary judgment dismissing the Plaintiff s complaint , is determined as hereinafter provided. and [* 2] In this action , the Plaintiff seeks to recover damages for personal injuries allegedly sustained as a result ofthe negligence ofthe Defendant. The complaint alleges on March 31 , 2010 , the Plaintiff was caused to trip and fall due to the existence ofa that slippery substance on the floor of the Stop & Shop supermarket located at 653 Hilside Avenue , New Hyde Park , County of Nassau , State of New York. The Plaintiff commenced this action on June 17 , 2010 , by the filing of the summons and complaint and purchase of an index number. Issue was joined by the service of the Defendant's answer , dated July 13 , 2010. The Plaintiff fied her Note of Issue on November 28 2011. The Certification Order , dated September 15 2011 , states that motions for summary judgment must be fied within sixty (60) days As such , of the fiing ofthe Note oflssue. the time to file summary judgment motions expired on January 27 , 2012. The Nassau County Clerk' s Office Endorsement Cover Page reveals that the Defendant's motion for summary judgment was fied on January 31 , 2012 , four (4) days late. The Court wil address the issue of timeliness which was raised in the Plaintiffs first opposition papers. The Plaintiff claims that the Defendant' s application is untimely as it was submitted four (4) days late without leave of court. good cause exists for the late fiing of the motion. The Defendant's counsel motion , although not fied until January 3 P\ January 24 , 2012 , prior to the Court' s deadline. January 24 , In response , the Defendant states that states that the was served upon the Plaintiff s counsel on (See Affidavit of Service , 2012 , attached to the Defendant's Reply as Exhibit " sworn to on ) Counsel for the [* 3] Defendant submits the Affidavit of Rhonda Herbert , a paralegal employed with the Defendant' s law firm , wherein Ms. Herbert states that the motion , together with the fiing fee , was also mailed to the Court on January 24th . Counsel submits that the firm anticipated that the motion would be fied on or before the deadline of January 27th . Counsel further states that this rises to the level of good cause as there was a reasonable expectation and reliance that the Court would receive and fie the motion before the deadline. It is incumbent upon the movant to ensure that a motion is fied in a timely fashion. In the instant matter , the Defendant has proffered a reasonable excuse for the delay in the fiing of the motion. Further , the motion was served in a timely fashion. The Court in its discretion , under the particular circumstances ofthis case , wil deem the motion timely fied and consider same on its merits. The Plaintiff alleges that she was caused to slip and fall at Stop & Shop due to a wet , slippery substance , later learned to be from a can of soup. The Plaintiff alleges that the Defendant had actual and/or constructive notice of the defective condition and failed to timely remedy same. In support of the motion , the Defendant relies on the deposition testimony of , an Assistant Store Manager of Stop & Shop, Richard Comoll , and a non-part the Plaintiff witness , Helene Phelan. The Plaintiff testified at her Examination Before Trial , that on March 31 2010 , she went to the Stop & Shop in New Hyde Park and first headed to the aisle in which the soda was located. (See Plaintiffs Transcript , dated May 11 , 2011 , page 15, [* 4] attached to the Defendant' s Notice of Motion as Exhibit " (Id. of pudding and placed them into her shopping car. realized that she wanted another carton of pudding. (Id. ) Thereafter , she got four cartons at pages 17- 18) The Plaintiff then at page 18) She left her shopping cart on the side of the aisle, got another carton of pudding, and on her way back to the shopping cart (Id. , she slipped and fell on a light yellow liquid substance with her left foot. , 26- 28) The Plaintiff did not see anything on the floor prior to the accident. (Id. at pages at page 26) The Plaintiff does not recall whether there were any other customers in the aisle at the time of her accident. (Id. The Plaintiff also could not recall whether there were any footprints or tire tracks in the liquid when she first observed it. Richard Comoll testified at an Examination Before Trial on behalf of the Defendant , Stop & Shop, on June 6 , 2011. Mr. Comoll testified that on the date of the accident he was an Assistant Store Manager. On the date of the accident, Mr. Comoll was notified by a customer that a can of soup fell off the shelf and it broke. Transcript , page 8 , attached to the Defendant's Notice of Motion as Exhibit " (See Comoll ) Mr. Comoll was in aisle nine when he heard the customer from aisle seven state that a can of soup fell and broke open. The protocol at Stop & Shop, once a complaint is made regarding a spil is to go immediately to the area with orange cones and call maintenance for a clean up. at pages 10- 11) Mr. Comoll (Id. first observed the Plaintiff when he went to aisle seven with the cones. He testified that he saw the Plaintiff on the floor just behind the area where the soup spiled. (Id. at page 11) After observing the Plaintiff on the floor, he asked whether she was [* 5] alright and , thereafter , her daughter arrived at the scene. At the time of the accident , (Id. at page 12) Mr. Comoll testified that he was performing a store tour which consisted of walking back and forth through every aisle. He toured aisle seven about ten minutes prior to being notified about the soup spil spiled soup at that time. and did not observe any at pages 24- 25) (Id. Helene Phelan , a non- part witness , witnessed the accident in March , 2010. Phelan Transcript , dated November 11 2011 , page 8 , attached to the Defendant' s Notice of Motion as Exhibit " ) At the time of the accident , Ms. Phelan was walking in the soup (See aisle attempting to get a worker to clean up the at page 9) Ms. Phelan testified that (Id. spil. upon pullng a can of soup off of a shelf, another soup can fell on the floor , broke and soup began to spil out of it. (Id. at page 10) Thereafter , when Ms. Phelan was walking to get a worker to inform them of the spil , she heard a holler from behind her and saw the Plaintiff on the floor in the vicinity of the soup spill. (Id. at pages 12- 13) At the time of the accident (Id. Ms. Phelan observed that the Plaintiff was alone. at page 13) According to Ms. Phelan from the time the soup can fell to the time of the accident , it was approximately one to two minutes, but less than five minutes. (Id. at pages 14- 15) Based on the testimony of the Plaintiff, Mr. Comoll and Ms. Phelan , the Defendant seeks summary judgment dismissing the Plaintiffs complaint as the Plaintiff cannot establish a prima facie case of negligence against the Defendant. The Plaintiff s counsel , in opposition , states that there are four different [* 6] versions of the events which warrants denial of the motion for summary addition to the deposition judgment. In transcripts proffered by the Defendant , he also submits the deposition testimony of the Plaintiff s daughter who arrived at the scene after the accident occurred. The Plaintiffs daughter , Swati Khorana , testified that she spoke with the store manager who stated that he was sorr, (See maintenance failed to come. he called maintenance to clean up the spil , but that Khorana Transcript , page 12 , attached to the Plaintiffs Opposition as Exhibit " Summary judgment standards are well settled. The movant must establish the cause of action or defense by submitting evidentiar proof in admissible to warrant the court as a matter of law in directing judgment" York 49 N. Zuckerman form " sufficiently v. City of New 2d 557 (1980). Failure to do so " requires denial of the motion , regardless of the sufficiency ofthe opposing papers Winegrad v. New York Univ. Med. Ctr. 64 N. 851 (1985). When such a showing has been made by the movant , then to defeat summary judgment "the opposing part fact" . (CPLR 3212 , subd (bJ; summary judgment motion , nonmoving part. must show Branham Zuckerman facts sufficient to require a trial of any issue of v. City of New York, supra at 562). On a the evidence must be viewed in a light most favorable to the v. Loews Orpheum Cinemas, Inc. 8 N. 3d 931 (2007). The question presented by this motion is whether the Plaintiff has raised a triable issue of fact that the Defendant had notice ofthe condition and/or created it. Viewing the evidence herein in a light most favorable to the Plaintiff, the court finds that the Plaintiff [* 7] has failed to raise the requisite issue of fact on this question. As noted above , this action is sounded in negligence. It is well settled that to establish case of negligence , it is incumbent upon the plaintiff to establish that aprimafacie the defendant either created the dangerous condition or had actual or constructive notice thereof. Golding v. Dempsey, Inc. 247 A. Powell 2d 510 (2d Dept. 1998); Carrilo 16 A. D.3d 611 (2d Dept. 2005). " To constitute constructive notice , a PM Realty Group, defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant' s employees to discover and remedy it" 247 A. & Dempsey, Inc., Museum of Natural History, 2d 510 (2d Dept. 67 N. 1998), supra quoting Gordon Golding v. v. Powell American 2d 836 837 (1986). Having reviewed the record , the Court finds that the Defendant has established its entitlement to judgment as a matter of law. The testimony Helene Phelan , of the non- part witness conclusively establishes that the Defendant did not create the defective condition. Ms. Phelan testified that she caused the can of soup to fall to the floor. Further the evidence presented reveals that the soup was on the floor for only a matter of minutes prior to the Plaintiffs accident. Moreover , there is no evidence that there was any delay on the part of the Defendant in addressing the spil. Rather, Mr. Comoll testified that he had toured the soup aisle approximately ten minutes prior to the accident and there was no soup on the floor at that time. After being notified about the spil , he then immediately called for maintenance and went to the aisle with cones according to store protocol. Therefore , the [* 8] defective condition did not exist for a sufficient length oftime prior to the accident to permit the Defendant's employees to discover and remedy it. The Plaintiffs counsel' s contentions that there are four different versions ofthe circumstances surrounding the Plaintiff s accident and the timing of the fall is without merit. Accordingly, it is hereby ORDERED , that the motion by the Defendant , pursuant to CPLR ~ 3212 seeking an order granting summary judgment dismissing the within complaint GRANTED; and it is further ORDERED , that the Plaintiffs complaint is DISMISSED. This constitutes the decision and order of the Court. DATED: Mineola, New York July 3, 2012 Hon. Randy u Marber, J. ENTERED JUL 06 2012 NASSAU COUNTY COUNTY CLERK'S OFFICE
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