Paduano v 686 Forest Ave., LLC

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Paduano v 686 Forest Ave., LLC 2012 NY Slip Op 31968(U) July 24, 2012 Supreme Court, Richmond County Docket Number: 102142/2009 Judge: Philip G. Minardo 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] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND DCM PART 6 HILDEGARD PADUANO, individually and as Administratrix of the Estate of JOHN JOSEPH PADUANO, deceased, HON. PHILIP G. MINARDO DECISION AND ORDER Plaintiffs, Index No.: 102142/2009 -againstMotion Nos. 664-002 737-003 686 FOREST AVENUE, LLC, and BRAISTED & BRAISTED, Defendants. _____________________________________________ 686 FOREST AVENUE, LLC, Third-Party Plaintiff, TP Index No.: A102142/2009 -againstBRAISTED & BRAISTED, Third-Party Defendant. _____________________________________________ The following papers numbered 1 to 4 were fully submitted on the 10th day of May, 2012. Papers Numbered Defendant BRAISTED & BRAISTED s Notice of Motion, dated February 29, 2012, with Exhibits and Supporting Papers __________________ 1 Defendant/Third-Party Plaintiff 686 FOREST AVENUE, LLC s Notice of Motion, dated February 29, 2012, with Exhibits and Supporting Papers __________________________________________________________ 2 Plaintiff HILDEGARD PADUANO s Affirmation in Opposition, dated March 15, 2012, with Exhibits and Supporting Papers ____________________ 3 1 [* 2] Defendant BRAISTED & BRAISTED s Reply Affirmation, dated April 17, 2012, with Exhibits _______________________________________________ 4 _____________________________________________________________________________ In this wrongful death action, defendants 686 FOREST AVENUE, LLC. (hereinafter 686 FOREST ) and BRAISTED & BRAISTED (hereinafter BRAISTED ) move, pursuant to CPLR 3212, for summary judgment dismissing plaintiffs complaint. Plaintiff HILDEGARD PADUANO is the Administratrix of the Estate of JOHN JOSEPH PADUANO (hereinafter PADUANO ). PADUANO suffered injuries when he slipped and fell as he entered the vestibule of an office building owned by 686 FOREST and maintained by BRAISTED. Plaintiff contends that on the date of the accident and for a period of time prior thereto the floor in the vestibule area was excessively wet, slippery, unguarded, unprotected and unsafe ; that there was an accumulation of water due to tracked-in snow or rain; and that there was a failure by the defendants to maintain the vestibule in a reasonably safe condition. It is uncontroverted that there were no witnesses to the accident. PADUANO was taken by ambulance directly from the office to a hospital and died two months later. Both defendants claim that plaintiff is unable to prevail in this matter because there is no specific evidence as to the defective or dangerous condition which caused PADUANO to trip and fall. In addition, the defendants assert that PADUANO is unable to demonstrate that either defendant had actual or constructive notice of any defective or hazardous condition in the vestibule. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has satisfied this burden, the burden shifts to the [opponent] to lay bare his or her proof and 2 [* 3] demonstrate the existence of a triable issue of fact (Chance v. Felder, 33 AD3d 645, 645-646 [2006]). 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 notice of its existence for a sufficient length of time to discover and remedy it (Sloane v. Costco Wholesale Corporation, 49 AD3d 522 , 523, quoting Frazier v. City of New York, 47 AD3d 757, 758 [2008]). Plaintiff asserts that PADUANO was caused to fall on a wet spot in the vestibule of the premises and claims that this allegation is confirmed by the information contained within the certified hospital records (including the ambulance call report and the intake and treatment notes). Specifically, the FDNY Prehospital Care Report sets forth that . . . pt. had fallen in lobby of lawyer office. Pt. had slipped on a wet spot . In addition, a Physician Note provides that PADUANO reports sustaining injury to right hip when he slipped and fell on the marble floor while he was in his lawyer s office and the category of Health History (Patient s Reason For Hospitalization Patients Own Words) as contained in the Hospital s Inpatient Admission Assessment - it indicates s/p fall in office vestibule slipped on wet marble floor . Plaintiff also supplies an affirmation from a physician who opines that, based on his review of the aforesaid medical records, the information contained therein was germane to the diagnosis and treatment of PADUANO. Plaintiff contends that these statements at the very least, raise a question of fact as to whether there was a defective condition in the vestibule area of the defendants premises and whether said premises was properly maintained . Defendants claim that the information related to the description of the accident that is contained in the hospital records is inadmissable as hearsay because it cannot be confirmed that it 3 [* 4] was PADUANO who provided the information to the reporter. However, information contained in a hospital record regarding the manner in which the accident occurred may be afforded the business record exception to the hearsay rule if the records are germane to the diagnosis and/or treatment of the plaintiff (Kamolov v. BIA Group, LLC, 79 AD3d 1101 [2010]). Accordingly, as it may be reasonably inferred that the description of the accident as contained in the aforesaid hospital records was germane to the diagnosis and/or treatment of PADUANO, plaintiff will be afforded the presumption that PADUANO stated that he fell on a wet tile floor in the vestibule of the subject premises. However, plaintiff is unable to establish that either defendant had actual or constructive notice of the defective condition (the alleged wet tile floor) which caused PADUANO to fall. Employees of the tenants in the building testified that it was snowy and wet on the day of the accident and the vestibule was clean at the time PADUANO fell. There is no evidence that the alleged wet condition was present for a sufficient period of time for either defendant to have discovered and remedied it. There is no evidence that defendants created the alleged wet condition, and the defendants are not required to cover all of its floors with mats, nor to continuously mop up all moisture from tracked-in rain (Zerilli v. Western Beef Retail, Inc., 72 AD3d 681 [2010] quoting Negron v. St. Patrick s Nursing Home, 248 AD2d 687 [1998], see also, Gullo-Georgio v. Dunkin Donuts Incorporated, 38 AD3d 838 [2007]). In addition, plaintiff s contention that the accident was caused by defendants failure to have a mat in place on the day of the accident or that the placement of the mat in some way contributed to PADUANO s fall is purely speculative. There is simply no evidence proffered by plaintiff which supports any finding that defendants had actual or constructive notice of any alleged defective condition which contributed to PADUANO s fall. (Kokin v. Key Food 4 [* 5] Supermarket, Inc., 90 AD3d 850 [2011]). Accordingly, it is ORDERED that defendant 686 FOREST AVENUE, LLC s and BRAISTED & BRAISTED s motions, pursuant to CPLR 3212, for summary judgment dismissing plaintiffs complaint are granted in their entirety. This shall constitute the decision and order of the Court. E N T E R, /s/ Philip G. Minardo HON. PHILIP G. MINARDO Dated: July 24, 2012 5

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