Lloyd v Marrano Dev. Affiliates, L.P.

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Lloyd v Marrano Dev. Affiliates, L.P. 2012 NY Slip Op 32102(U) August 2, 2012 Sup Ct, NY County Docket Number: 103320/2009 Judge: Debra A. James 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 PRESENT: OF NEW YORK - NEW YORK COUNTY DEBRA A. JAMES PART 59 Justice Index No.: Plaintiff, - V I 103320/2009 Motion Date: TIFFANY LLOYD, 1212312011 Motion Seq. No.: MARRANO 1SEVELOF)MENT AFFILIATES , L . P. and BROADWAY MANAGEMENT C O R P . , 001 Motion Ca,, No,: Defendants. BUG 0 9 2012 The following papers, numbered Ito 3 were read on this motion for summary judgment. NEW YORK %\I-ry' {;L.ERKS PAPERS NUMBERED Notice of MotionlOrder to Show Cause -Affidavits -Exhibits Answering Affidavits - Exhibits Replying Affidavits - Exhibits Cross-Motion: nYes BNo Upon the foregoing papers, it is ordered that the motion for summary judgment of the defendants shall be denied. I n t h i s t r i p and f a l l a c t i o n concerning a n a c c i d e n t w h i c h o c c u r r e d on September 2 6 , 2 0 0 6 at the defendants' a p a r t m e n t building l o c a t e d a t 3 1 0 West 1 3 d S t r e e t , N e w York, N e w York, 4' t h e d e f e n d a n t s inwe for summary j u d g m e n t . Pla.int:iff t e s t - i f i e d at. h e r d e p o s i t i o n t e s t i m o n y that on t h a t dat-e at. a p p r - o x i m a t e l y 7 AM, she, at rhe time a n e x p e c t a n t mother ( d e l i v e r y due o n December 1 2 , 2 0 0 6 ) , began waiting in t h e intercom room of t h e b u i l d i n g where s h e was a t e n a n t in o r d e r t o 1 t a k e her rhild o u t s i d e and p u t him on a s c h o o l b u s . Check One: FINAL DISPOSITION During t h a t NON-FINAL DISPOSITION OFFICE [* 2] time she observed through the g l a s s walls of t h e intercom room a porter rriopping the area near the security office and storage room. She waited about 45 minutes because the school bus was late that day. A f t - e r placing h e r child on the bus, she reentered the lobby of t-he building, took three steps and fell s u f f e r i n g a back injury arid the onset of labor. D e f e n d a n t s move f o r summary judgment on t h e grounds that there is no negligence since their porter's mopping of t h e floor was not inherently dangerous and because plaintiff observed the porter mopping the floor establishing that any failure to warn was not. a substantial factor in bringing about her i n j u r i e s . Defendants argue that as the condition of the floor was open and obvious, plaintiff admitting t h a t she observed the porter in the process of mopping the floor, defendants had no duty to warn her of t h e hazard and may not be c a s t in damages as a matter of law. They cite McPherson v Grant Advertisinq, Inc, 281 AD 579 (1" Dept 1953) in support of their contentions. Plaintiff counters that she only observed the porter mopping in the security office and storage a r e a but not i n t h e lobby, saw the mop bucket in the lobby at t h e time of her fall, and saw no wet s i g n s . She disputes the recollection of the porter that 1-le had o n l y reached the entrance d o o r s adjacent to khe lobby at the titne of h e r accident, that the a r e a where plaintiff f e l l was not wet, and that b e f o r e he began mopping, he -2- [* 3] placed wet signs two or three feet from where plaintiff fell. Plaintiff a r g u e s that such evidence raises an issue of f a c t whether defendants breached their duty of care to plaintiff in failing t o post warning signs in the lobby to alert plaintiff of the wet cond i t i on . finds that t h e r e are issues of f a c t to be determined at t r i a l and therefore summary judgment shall be denied. The cases cited by defendantu.ax-e distinguishable from t h e present action. In McPherson, supra, t h e Court reversed t h e jury verdict in favor of a plaintiff who "admitted t h a t she knew that the floors were being cleaned, and testified that during the evening, prior to the time when s h e fell, she 'had to pass the corridor that led into t h e cloak room and that was being waxed.' Inasmuch as it thus a p p e a r s s h e knew that t h e floors were being waxed, close by where she slipped and fell, she possessed whatever information a warning would have given." 281 AD at 582-583. In setting aside the verdict and dismissing the complaint, the McPherson Court reasoned that The floors had to be cleaned and waxed at some time, and, although a jury question might have been presented if the floor had been l e f t in an unsafe condition a f t e r the work had been completed, defendants would be s u b j e c t e d to a greater burden than the law imposes if they were required to i n s u r e that t.he floors of these offices would be in their normal condition a t each stage of t h e process of washing and waxing them, at l e a s t as regards plaintiff w h o already knew that the work was in progress in t h e immediate vicinity. -3- [* 4] 281 AD2d at 583. The facts at bar are more similar to those in the lower court o p i n i o n in Coqqin v Clinton Trust, 52 NYS2d 827 (NY City C o u r t 1944) n . 0 . r . where the court trial court denied defendant s motion f o r a directed verdict and entered judgment in favor of the plaintiff. In Coqqin, the trial judge found t h a t the infant plaintiff fell in an accumulation of water and soap in the vestibule of defendant s multiple dwelling where she lived with her f a m i l y who were tenants, which puddle the janitress s daughter l e f t when she abandoned that area to wash the hall on the floor immediately above the g r o u n d floor.1 Likewise, the evidence, here in the form of t h e plaintiff s and the porter s conflicting deposition testimony, raises a question that must be determined by the fact finder, i.e. whether there was negligence on the p a r t of defendants, specifically whether the porter put or spilled water on t h e lobby before he commenced mopping there, and whether he placed caution signs in t h e vicinity of plaintiff s fall. In this regard, the c o u r t a g r e e s with plaintiff that on t h e facta of this c a s e , t h e question of whether a condition is open and obvious is one for- the j u r y . Nor is the mere that a defect ]Compare Sarnuels v T e r r y Holdinq C o r 253 NY 593 (1930) which as McPherson and Coqqin, was decided before the abrogation of t h e common law rule of contributory negligence and the adoption of comparative fault laws in New York S t a t e . -4- [* 5] or h a z a r d is c a p a b l e o f being discerned by a careful observer the end of the analysis. The n a t u r e or location of some hazards, while t h e y are technically visible, make them more l i k e l y to be overlooked. Westbroolc v WR Activities-Cabrera Markets, 5 AD3d 6 9 , 72 (l: , Dept 2004). Clearly such is the c a s e here, g i v e n t h e nature of water and the conflicting evidence in the record as to the precise location chat water was being applied during the period in question. AD3d 442 Contrast Melendez v City of New Y o r k , 76 ( l CDept 2010) L (city had no duty to protect park visitors from p a r k waterfall, a n a t u r a l geographic phenomenon whose wet, slippery l e d g e , was open and obvious, r a t h e r than latent, natural feature of the landscape). Accordingly, it is ORDERED t h a t defendant s motion f o r summary judgmen DENIED. 0 9 2072 This is tlhe decision and order of the court. Dated: Auqust 2 , 2012 NEW YOAK COUNTY CLERK S OFFICE ENTER : j,,2 r 1 . 4 r DEBRA A. JAMES -5- -4 J,S. C.

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