Lang v Vandelay Realty LLC

[*1] Lang v Vandelay Realty LLC 2016 NY Slip Op 50854(U) Decided on June 3, 2016 Supreme Court, Ulster County Fisher, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 3, 2016
Supreme Court, Ulster County

Raymond Lang, Plaintiff,

against

Vandelay Realty LLC, Defendant.



14-3637



John G. Rusk, Esq.

Counsel for Plaintiff

Rusk, Wadlin, Heppner & Martuscello, LLP

255 Fair Street, P.O. Box 3356

Kingston, New York 12402

Stuart S. Zisholtz, Esq.

Counsel for Defendant, movant

Zisholtz & Zisholtz, LLP

170 Old Country Road

Mineola, New York 11501
Lisa M. Fisher, J.

Plaintiff Raymond Lang brought this premises liability action against Defendant real estate company alleging that Defendant was negligent in causing his trip and fall accident on overgrown grass and weeds resulting in personal injury. Defendant real estate company owns an apartment building and adjacent parking lot at 213 Partition Street, Saugerties, New York. Since 2008, Diane Hendricks was property manager of this location. Plaintiff began renting a unit in December 2011. He also rented a parking spot and was assigned spot No. 2. This parking spot was in the rear of the building and the second parking spot along a grassy, narrow median. On the other side of the grassy median was a sidewalk along Clermont Street.

Between approximately 1 and 1:30 PM on July 18, 2014, Plaintiff exited the rear of the [*2]apartment building carrying an urn of hot coffee. The urn was large and held approximately 30 cups of coffee. The urn had a cover on it. Plaintiff held the urn in front of him with two hands. He walked from the apartment building to the sidewalk along Clermont Street, and preceded down the sidewalk towards his parked truck. He was going to the front passenger seat of his truck to secure the urn on the floor therein. Plaintiff's truck was parked along the grassy median and facing the building, thus his passenger side door was along the grassy median. To access the front passenger seat, Plaintiff had to cross the grassy median. He could not go along the parking lot because there was a vehicle parked in front of his truck.

Plaintiff stepped from the sidewalk onto the grassy median towards the passenger side of his truck. He claims his feet got tangled in the tall grass and weeds causing him to fall forward into the side of his truck. The urn hit the side of the truck and back splashed onto Plaintiff. The hot coffee spilled on him, particularly his right foot and ankle resulting in serious personal injuries.

Now, Defendant moves for summary judgment [FN1] arguing that it did not have actual or constructive notice of the alleged dangerous defect, that such alleged defect was open and obvious precluding liability, and that there is no causal relationship between the alleged negligence and the injury sustained by Plaintiff, i.e., hot coffee burns from tripping on grass and weeds.

Plaintiff opposes such motion, arguing that Defendant had actual and constructive notice of the alleged dangerous defect, and there was a causal relationship between the alleged negligence and the injury sustained. Further, Plaintiff argues notwithstanding Defendant's allegations that the defect was open and obvious, Defendant still has a duty to maintain its property in a reasonably safe condition.

This case presents a close call. The Court finds the only tenable issue to be the alleged open and obvious nature of the defect. Defendant claims this warrants dismissal, whereas Plaintiff claims it is not an aegis to liability and should go to the trier of fact. Given that Defendant cites to support for this proposition which has been abrogated for over a decade (citing to Sandler v Patel, 288 AD2d 459 [2d Dept 2001], abrogated by Cupo v Karfunkel, 1 AD3d 48, [2d Dept 2003] ["Accordingly, our decisions which stand for the broad proposition that liability under a theory of common-law negligence will not attach when the allegedly dangerous condition is open and obvious should no longer be followed (see e.g. [Sandler], supra; Bojovic v New York City Hous. Auth., 284 AD2d 356 [2d Dept 2001])."]), and in viewing the evidence in a light most favorable to the nonmoving party affording that party the benefit of all reasonable inferences (Greco v Boyce, 262 AD2d 734, 734 [3d Dept 1999]), for the reasons that follow Defendant's motion is denied, in its entirety.

Analysis

It has been well established that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. (Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012]; Sternbach v Cornell Univ., 162 AD2d 922, 923 [3d Dept [*3]1990].) The Court of Appeals has stated that "[n]eglience cases by their very nature do not usually lend themselves to summary judgment, since often . . . the very question of negligence is itself a question for jury determination" (Ugarriza v Schmieder, 46 NY2d 471, 474 [1979]).

It is equally well established that "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]; see also Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]; accord Hollis v Charlew Const. Co., Inc., 302 AD2d 700 [3d Dept 2003]). Such "burden may not be met by pointing to gaps in plaintiff's proof" (DiBartolomeo v St. Peter's Hosp. of City of Albany, 73 AD3d 1326 [3d Dept 2010]; accord Dow v Schenectady County Dept. of Social Servs., 46 AD3d 1084, 1084 [3d Dept 2007]).

Thus, a defendant who moves for summary judgment in a slip and fall or trip and fall case has "the initial burden of establishing, as a matter of law, that [it] maintained the property in a reasonably safe condition and did not have actual or constructive notice of the allegedly dangerous condition" (Jankite v Scoresby Hose Co., 119 AD3d 1189, 1189—90 [3d Dept 2014], quoting Dillenbeck v Shovelton, 114 AD3d 1125, 1126 [3d Dept 2014] [internal quotation marks, brackets and citations omitted]; see also McMullin v Martin's Food of S. Burlington, Inc., 122 AD3d 1103, 1104 [3d Dept 2014]). To place a defendant on constructive notice, the dangerous condition must have existed for a sufficient length of time before the accident as to allow defendant to discover and remedy it. (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; accord Rivera v 2160 Realty Co., L.L.C., 4 NY3d 837 [2005].)

"While generally a question of fact, [f]or a condition to be open and obvious as a matter of law, it must be one that could not be overlooked by any observer reasonably using his or her ordinary senses'" (King v Cornell University, 119 AD3d 1195, 1197 [3d Dept 2014] [emphasis preserved], quoting Arsenault v State of New York, 96 AD3d 97, at 102 [3d Dept 2012] [internal quotation marks and citations omitted]). Notwithstanding, "[t]he fact that a dangerous condition is open and obvious does not relieve a landowner of all duty to maintain his or her premises in a reasonably safe condition" (Barley v Robert J. Wilkins, Inc., 122 AD3d 1116, 1118 [3d Dept 2014]; Coleman v Crumb Rubber Manf., 92 AD3d 1128, 1131 [3d Dept 2012]; see MacDonald v City of Schenectady, 308 AD2d 125, 127 [3d Dept 2003] ["the open and obvious nature of an allegedly dangerous condition does not, standing alone, necessarily obviate a landowner's duty to maintain his or her property in a reasonable safe condition."]; see also Anton v Correctional Med. Servs., Inc., 74 AD3d 1682, 1682 [3d Dept 2010] ["While an open and obvious defect will negate the duty to warn of a potentially dangerous condition, it will not necessarily obviate a defendant's duty to maintain the property in a reasonable safe condition."]).

Here, the Court cannot say that Defendant did not have at least constructive notice of the dangerous defect. Defendant's property manager, Ms. Hendricks, testified she was on the subject property each day during the weekdays. The accident occurred on a Friday afternoon, giving her at least four opportunities—if not five—to observe the grass and weeds that week. She testified she also parked in the same parking lot as Plaintiff and where the incident occurred. The grass and weeds depicted in the submitted photographs—including weeds growing upwards along a post—simply could not have just sprouted the morning of July 18, 2014. There was sufficient time and opportunity for Defendant to discover and remedy it.

Further at her deposition, Mr. Hendricks was directed to review the photograph of the area where Plaintiff was caused to trip and fall. She was asked what she would have done if she [*4]observed that condition, if anything. She testified that she would have called the person responsible for lawn maintenance "[b]ecause it's apparently overgrowing by weeds." The area she was remarking about was along Plaintiff's assigned parking spot.

Premised on this testimony from Defendant's own representative, the Court is hard-pressed to find that Defendant met its prima facie burden that it did not have at least constructive notice and maintained the property in a reasonably safe manner.

Where Defendant attempts to escape liability is that the condition of the grass and weeds was open and obvious and that Plaintiff "was familiar with the area where he parked his vehicle." However, this near exact argument has failed before, as "[t]he fact that a dangerous condition is open and obvious does not relieve a landowner of all duty to maintain his or her premises in a reasonably safe condition, and plaintiff's familiarity with the allegedly defective condition may be considered with respect to [his] comparative fault" (Barley, 122 AD3d at 1118 [internal citations omitted]). Similarly, the Appellate Division, Fourth Department, reversed a trial court which accepted a defendant's open and obvious argument occurring on "alleged[ly] long grass" (see Williams v Chenango County Agric. Socy., 272 AD2d 906, 906 [4th Dept 2000] [reinstating the complaint except insofar as it alleges a negligence in failing to warn].) While it is clear that there is comparative fault, perhaps rather significant comparative fault, it is for a trier of fact to decide at trial—not for this Court on a motion for summary judgment.

As aforementioned, Defendant relies on a case which has been abrogated for over a decade. (Sandler, supra, 288 AD2d at 459.) Another case, Costello v Grand Central Plaza, Inc. (268 AD2d 722 [3d Dept 2000]), is distinguishable as the plaintiff therein walked through the defect as she entered the store, admitted to observing the condition, and upon exiting the store walked through the defect again even though she could have avoided doing so. Here, Plaintiff testified he did not observe the defect previously as he did not need to get additional supplies on the day prior. Since he was going to the passenger side door and not the driver's side door, he would not have observed the defect when he parked. He also could not have avoided the defect as another vehicle was parked in front of his truck. He also testified to not observing the defect prior his trip and fall.

Defendant also string-cites without application to Russell v Archer Building Centers, Inc. (219 AD2d 772 [3d Dept 1995]), which is also distinguished as the plaintiff tripped over the bottom rail of an entire steel display rack forming one side of an aisle in a store. This bottom rail did not protrude into the "uncluttered aisle" and the display rack was "plainly discernible" (Russell, 219 AD2d at 773). Whereas here, Plaintiff tripped and fell over the weeds in a grassy median. According to Ms. Hendricks, the weeds were in an area where "[t]he rest of [the weeds/grass] is only a couple inches high." Being that both the grass and weeds are green and similar in appearance in the area, it cannot be said that these were as "plainly discernable" as the side wall of an entire shopping aisle at a store.

Defendant's citation to Tagle v Jacob (97 NY2d 165 [2001]) acknowledges that a court "may determine that a risk is open and obvious as a matter of law when the established facts compel that conclusion" (emphasis added). This Court cannot say the facts compel such conclusion, and note that MacDonald analyzed the Court of Appeal's decision in Tagle to "suggest[] that the obviousness of the allegedly dangerous conditions does not negate the duty to maintain as a matter of law" (MacDonald, 308 AD2d at 128.)

Furthermore, Defendant argues that there was no causal relationship between the alleged negligence and Plaintiff's injury. Namely, Defendant contends that there was no reasonable expectation and it was not foreseeable that Plaintiff would be carrying an urn of hot coffee and spill it on his foot. Defendant's attempt to rely on Palsgraf v Long Is. R.R. Co. (248 NY 339 [1928]) to support this proposition. However, "[t]o the extent that defendants contend they could not possibly foresee the manner in which plaintiff was injured, we note that plaintiff was not required to demonstrate the foreseeability of the precise manner in which the accident occurred or the precise type of harm produced in order to establish the foreseeability component of [his negligence claim]'" (Evarts v Pyro Engineering, Inc., 117 AD3d 1148, 1151—52 [3d Dept 2014], quoting Di Ponzio v Riordan, 89 NY2d 578, 583—84 [1997]; see also Derdiarian v Felix Contracting Corp., 51 NY2d 308, 316—17 [1980] [noting that even though "defendant could not anticipate the precise manner of the accident or the exact extent of injuries, however, [this] does not preclude liability as a matter of law where the general risk and character of injuries are foreseeable."]).

In Evarts, which is a case involving a potential burn injury which actually resulted in a slipping injury, whereas this case is a potential slipping injury which actually resulted in a burn injury, the Appellate Division, Third Department, flatly rejected the defendant's similar arguments that the injury sustained did not match the alleged negligence. In Evarts, defendant-firework company launched an erratic firework into a crowd of spectators, causing the plaintiff, who was sitting down and approximately 700 feet from the launch site, to pivot on her hand and shield her children. When she did so, her hand slipped and she tore a ligament in her hand. Neither she nor her children sustained any burning injuries from the erratic firework.

Here, it is well established that a trip and fall could cause serious injury, particularly to one's foot or ankle. While typically not a burning injury, it is not uncommon for an individual to walk to his or her vehicle with a potentially hazardous item—whether that be chemicals or hot liquid. This could be even in the form of a single cup of hot liquid, such as coffee, which the Court's research found several slip and fall matters involving burn injuries caused in this or a similar manner. (See, i.e., Khanimov v McDonald's Corp., 121 AD3d 1050 [2d Dept 2014] [involving slip and fall wherein the plaintiff sustained burns after the hot coffee he had been carrying splashed upon his as a result of his fall], dismissed on other grounds 121 AD3d 1052 [2d Dept 2014].) Such application to this case is further supported since Plaintiff testified that he had witnessed on numerous occasions other tenants carrying containers of potentially hot items, such as pots and crockpots, as well as that he has carried the hot urn of coffee to his vehicle before. Given that Ms. Hendricks is on the property every weekday, and the benefit of every reasonable inference goes to the nonmovant, the injuries sustained by Plaintiff are reasonably foreseeable and a trier of fact shall decide causation.

To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.

Thereby, it is hereby

ORDERED that Defendant's motion is DENIED, and all other relief requested therein is denied in its entirety.

This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to [*5]comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.

IT IS SO ORDERED.

DATED: June 3, 2016

ENTER:

Catskill, New York

_______________________________

HON. LISA M. FISHER

SUPREME COURT JUSTICE

Papers Considered:

Defendant's notice of motion, dated February 18, 2016; affidavit of Diane Hendricks, dated February 10, 2016; affirmation of Stuart S. Zisholtz, Esq., with annexed exhibits, dated February 18, 2016; memorandum of law in support of defendant's motion for summary judgment, undated;

Affirmation in opposition of John G. Rusk, Esq., March 3, 2016; affidavit of Raymond Lang, with annexed exhibits, dated March 1, 2016; plaintiff's memorandum of law in opposition to defendant's motion for summary judgment, dated March 3, 2016; and

Reply affirmation of Richard Zisholtz, Esq., dated March 29, 2016. Footnotes

Footnote 1:There were errors with filing the notice of motion and motion papers. These errors were resolved amicably between the parties and reduced to an Order by the Court. Because of this, Defendant's motion is not untimely. The Court notes that the record of submitted papers may not be in chronological order at the County Clerk's office.