Santos v Central Amusement Intl., LLC

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Santos v Central Amusement Intl., LLC 2017 NY Slip Op 31539(U) July 21, 2017 Supreme Court, New York County Docket Number: 155304/2014 Judge: Kelly A. O'Neill Levy Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 07/24/2017 02:47 PM 1] NYSCEF DOC. NO. 75 INDEX NO. 155304/2014 RECEIVED NYSCEF: 07/24/2017 SUPREME COURT OF THE STATE OIF NEW YORK NEW YORK COUNTY PRESENT: HON. KELLY O'NEILL LEVY PART 19 Justice ' -----------------------------------------------------------------------------------X VALERIE SANTOS INDEX NO. . 155304/2014 Plaintiff, MOTION DATE MOTION SEQ. NO. -v- 002 ·, CENTRAL AMUSEMENT INTERNATIONAL, LLC, DECISION AND ORDER Defendant. ---------~~------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number 41, 42, 43, 44, 45, 46, 47, 48, 49, 5o,j51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64,.65, 66, 67, 68, 69, 70, 71, 72, 73 I were read ·on this application to/for Upon the foregoing documents, it is Defendant Central Amusement International, LLC., moves, pursuant to CPLR 3212, for an r order granting summary judgment dismissing Plaintiff Valerie Santos' complaint against it. Plaintiff opposes and requests reverse summary judgment pursuant to CPLR 3212(b). BACKGROUND Plaintiff seeks to recover for personal injuries allegedly sustained on July 20, 2013 when she a fell on painted sidewalk abutting Cyclone Roller Coaster Ride Facilities at Surf Avenue and West l. 10th Street in Brooklyn, which is operated and maintained by Defendant. Plaintiff argues that ~ Defendant created a defective condition created when it negligently painted the sidewalk by failing to prop~rly prepare the sidewalk surface for painting, applying paint to an area of sidewalk already '• coated with layers of paint, and by failing to add sand to the paint to make it slip resistant. 155304/2014 SANTOS, VALERIE vs. CENTRAL AMUSEMENT Motion'No. 002 · 2 of 8 Page 1of7 [*FILED: NEW YORK COUNTY CLERK 07/24/2017 02:47 PM 2] NYSCEF DOC. NO. 75 INDEX NO. 155304/2014 RECEIVED NYSCEF: 07/24/2017 ' ' Defendant contends that there is no evidence that it created a dangerous, defective, hazardous, or slippery condition; rather Defendant argues it followed ;the manufacturer's painting instructions and properly applied the paint. l I ·' DISCUSSION ,On a motion for summary judgment, the moving party has the burden of offering sufficient evidence to make a prima facie showing that there is no. triable material issue of fact. Jacobsen v. NY c?ty Health & Hasps. Corp., 22 N.Y.3d 824, 833 (2014). Once the movant makes that showing, the burden shift~ to the non-moving party to establish, through evidentiary proof in admissible form, that there exist material factual issues. Zuckerman v. City of New York, 49 N.Y.2d .I .557 (1980). In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party. Henderson v. City of New York, 178 A.D.2d 129, 130 (1st Dep't 1997). The court's function on a motion for summary judgment is issue-finding, :t rather than making 'credibility determinations or findings of fact. Vega v. Restani Const. C01p., 18 . 'l • ' ' N.Y.3d',499, 503, 505 (2012). To impose liability upon a defendant in a slip and fall action, there must be evidence tending to show (1) the existence of a dangerous or defective condition and (2) that the defendant either •) created''.the condition or had actual or constructive knowledge thereof. Bock v. Loumarita Realty Corp., 40 Misc. 3d 1232(A), 3-4 (Sup. Ct., New York County 2013) (citing Richardmn v. . . ' Campa~elli, 297 A.D.2d 794, 794 (2d Dep't 2002). In a negligence cause of action with respect to ! 'i a slippery floor, the application of paint to the floor in a non-negligent marmer will not, standing r alone, support such negligence cause of action. Walsh v. Super Value, Inc., 76 A.D.3d 371, 374 (2d Dep't 2910). Further, courts have granted summary judgment to defendants dismissing a slip and I ! fall claiin where a painted sidewalk was slippery when wet from rain but there was no evidence the r " paint wis defective, contained improper materials or had been improperly applied. Bock v. Loumafita Realty Corp. at 4, (Sup. Ct., New York County 2013) (c~ting Phillips v. 630 McKinley 155304/2014 SANTOS, VALERIE vs. CENTRAL AMUSEMENT Motion No. 002 I j 3 of 8 Page 2 of 7 [*FILED: NEW YORK COUNTY CLERK 07/24/2017 02:47 PM 3] NYSCEF DOC. NO. 75 INDEX NO. 155304/2014 RECEIVED NYSCEF: 07/24/2017 Square Corp., 285 A.D. 18, 19 (1st Dep't 1954) ("No proof was adduced to establish that the paint was in:~anywise defective or contained improper materials or had been improperly applied. To hold . . abutting owners and the city liable in such state of facts would be to impose an intolerable burden"). Thus, t9 survive summary judgment, Plaintiff must establish that Defendant's application of paint to the sid~walk was in some way negligent. ' :According to the instructions from U.C.P. Paint; Inc. who manufactured the paint for distribution by Statewide Coatings: "Surfaces must be clean, dry and free of grease, scaling paint ~ and mildew. Fill all holes and cracks with patching compound, allow to dry. Sand properly and ' remove residue using a solvent wipe. Bare surfaces should be primed." See Statewide Coatings l subpoe~a response, Ex. 4. ' Defendants offer the affidavit of David Lynch, Defendant's maintenance technician who ~- '> painted the sidewalk area at issue, in which he testifies that ''[t]here was no need to fill any holes or cracks with a patching compound in that area," "[t]he area was clean, dry and free of grease, scaling ., \ paint atld mildew prior to the painting," and he "primed the sidewalk prior to painting" it. Notwithstanding the paint instructions and Mr. Lynch's affidavit, Plaintiff contends that ' ' ' Defendant painted over an already painted surface and did not take the necessary precautions, ., . thereby[creating a defective condition. Plaintiff offers the affidavit of expert Herman Silverberg, in:~which he testifies that by "painting the sidewalkas it did" Defendant "violated the P.E., manufacturer's recommended surface preparation requirements and accepted engineering and safety ' standards and practices." Mr. Silverberg explains that "[a]pplying the paint to an already painted concrete sidewalk does not comply with the required standard of surface preparation and creates a • 1~ . ' smooth :enamel surface finish that inhibits the concrete surfac~ finish from providing the required friction.to prevent slips and falls." Indeed, Mr. Silverberg testified that he spoke with Jay Sederoff . ~ from U.C.P. Paint, Inc., who stated that it was not recommended to use this paint in multi-layer · coats ori concrete as it can be a slippery condition when wet. Mr. Silverberg further testified that . ,, ( t 155304/2014 SANTOS, VALERIE vs. CENTRAL AMUSEMENT Motion'No. 002 4 of 8 Page 3 of 7 [*FILED: NEW YORK COUNTY CLERK 07/24/2017 02:47 PM 4] NYSCEF DOC. NO. 75 INDEX NO. 155304/2014 RECEIVED NYSCEF: 07/24/2017 Defen4ant failed to take the necessary precautions by adding sand, a good and accepted engineering and safety standards and practice, to make the sidewalk·slip resistant. lFurthermore, Mr, .Silverberg testifies that by pai~ting over an already painted area, Defendant violated New York City Standard Highway Specifications Section 4.13.4(1), which i requires that "[t]he top surfaces shall be finished to true smooth planes by screeding, and finally by :·· ~- ' ." wooden floats, then lightly broomed to a uniform texture." According to Mr. Silverberg, painting several: layers of enamel paint on a concrete walkway surface interferes with the required broomed ' finish '~that provides a required friction a.nd gives the required traction in order to prevent a pedestr!an to slip and fall." Mr. Silverberg also testifies that Defendant violated New York City Building Code 1003.4, which states in pertinent part that "[w]al.king surfaces of the means of egress shall have a slip-resistant surface." He explains that by painting over an already painted area, ·. Defend~nt failed to have a slip resistant surface as required under section 1003.4. Defendant argues that there were not multiple layers of paint over the concrete area at issue and offers the examination before trial testimony of Jenilifer Tortorici, Defendant's Director of Operations, who testifiedas follows (Tr. Tortorici at 38): ·Q. Could you tell me approximately how long b~fore July 20, 2013 it was first painted? A. I think it was painted in March of 2013. Q. Before March of 2013, was it just that area, was it finished concrete with no painting on it? A. Yes . .However, the testimony of each of Plaintiff, Mr.,Lynch, and Valerio Ferrari, the shareholder ·' :~ , I·· . • and the president of Defendant, along with photographs admitted into evidence, raise a question of fact as fo whether there were multiple layers of paint on the concrete on which Plaintiff slipped and fell. " Mr. Ferrari, testified as follows (Tr. Ferrari at 22): 155304/2014 SANTOS, VALERIE vs. CENTRAL AMUSEMENT Motion· No. 002 5 of 8 Page 4of 7 [*FILED: NEW YORK COUNTY CLERK 07/24/2017 02:47 PM 5] NYSCEF DOC. NO. 75 :r A. INDEX NO. 155304/2014 RECEIVED NYSCEF: 07/24/2017 If you notice from this picture, there is two different coloring of the pavement. ·i !Q. Of the paint? .A. Yes. .'.Q. I think there's a better picture to show that. You could look in Photograph H . ~A. The ticket booth was sitting in the lighter painted area of this comer. ·; !Ms. Santos testified as to several photographs sllown, including those shown to Mr. Ferrari .f. ,.: in whi~h he indicated there were two different colorings of pavement, and that they accurately l depicte'd the location of the painted sidewalk where she-slipped and fell. Tr. Santos at 67-80. .. ' ;Mr. Lynch testified at his examination before trial as follows (Tr. Lynch at 21): ' )Q. The sidewalk in that area, was it already painted before he told you to paint it? ' 'A. I am not sure. I am not sure. It has been a long time. He later testified by affidavit that "[t]he area was clean, dry and free of grease, scaling paint ; . ' and mildew prior to the painting." Thus, at his examination before trial, Mr. Lynch testified that he i is not certain whether the sidewalk area had already bee1;1 painted, but in his affidavit, he testified t ~: l that the: area was free of scaling paint. Though not directly inconsistent, these statements in conjundtion raise an issue as to whether there was or was not already a layer of paint on the concrete. In addition, Mr. Lynch testified that he did not add sand to the paint. Tr. Lynch at 24. :} ,! rlaintiffs expert's testimony, along with the testimony of Mr. Ferrari, Plaintiff, Mr. Lynch, 1 and the ,photographs admitted into evidence, are sufficient to raise questions of fact as to whether Defend&nt painted over an already painted area at the lo~ation of Plaintiffs incident and whether ...' that constitutes a negligent application of paint to a sidewalk. Accordingly, Plaintiff has submitted I i .j: sufficient evidence to raise a question of fact as to whether the paint on the sidewalk contributed to the incident or created a more hazardous condition than would be found had Defendant not painted . l \ the side~alk . • , J ·' 155304/2014 SANTOS, VALERIE vs. CENTRAL AMUSEMENT Motion,No. 002 6 of 8 Page 5 of7 [*FILED: NEW YORK COUNTY CLERK 07/24/2017 02:47 PM 6] NYSCEF DOC. NO. 75 INDEX NO. 155304/2014 RECEIVED NYSCEF: 07/24/2017 . Defendant offers the report of expert Scott Derector, P.E., who states that, pursuant to the ASTM; F609 standard, he used a Horizontal Pull Slipmeter to conduct a dry static slip-resistance test, measuring the static coefficient of friction, and found there was no difference in slip resistance between concrete painted with paint that included paint thi1mer and paint that did not. Report of Scott J:?erector, P.E., Ex. K. However, the test did not account for slip resistance when there are multiple layers of paint, and it did not consider a wet surface. 1 See ASTM f 609-05 Section 4.1 "Signif,icance and Use" {"The HPS cannot be used on wet surfaces. Slip Index can be affected by :1 "~ ... pres,ence of water ... Slip Index, as determined by HPS, most likely will not give useful information for evaluating liquid contaminated ·Surfaces"). t i'; iMr. Derector also stated that New York City Bu,ilding Code 1003 .4 should not apply because a public sidewalk is not a means of egress as defined under the code; rather the sidewalk was part of a public way. 2 Nevertheless, Mr. Silverberg's opposing testimo?y is sufficient to raise a questio~ of fact as to whether section 1003.4 should apply. Accordingly, Defendant's motion for an order granting summary judgment should be denied due to the factual questions at issue, and, for the same reasons, Plaintiffs request for reverse ·I I' : . summary judgment should be denied. Moreover, Plaintiff testified at her examination before trial that it began to rain around 6:30-7:00 p.m. and that at the time of the fall it was "raining heavily." Tr. Santos at 19, 30. She was wearing "flip flops" and "walking fast" when she turned the corner, ' ' stepped on a painted section of the sidewalk and fell. Id.; at 19, 27, 30. Plaintiff testified that her right foot slipped but that she could not recall if ~er flip flop stayed on her foot when she fell. Id. at As disc.ussed below, Plaintiff testified that it was raining heavily at the time of her incident. Tr. Santos at 30. Accordjng to Mr. Derector, under 2008 New York City Building Code Section 1002.1, entitled "Definitions," Means of Egress' is defined as "[a] continuous and unobstructed path of vertical and horizontal egress travel from any occupied portion of a building or structure to a public way. A means of egress consists of three separate and distinct parts: the exit access, the exit and the exit discharge." A Public Way is defined as "[a] street, alley or other parcel of land open to the outside air leading to a street, that has been deeded, dedicated or othe~ise permanently appropriated to the public for public use and which as a clear width and height of not less than 10 feet (3048mm)." I 2 .l 155304J2014 SANTOS, VALERIE vs. CENTRAL AMUSEMENT Motion No. 002 7 of 8 Page 6 of 7 [*FILED: NEW YORK COUNTY CLERK 07/24/2017 02:47 PM 7] NYSCEF DOC. NO. 75 INDEX NO. 155304/2014 RECEIVED NYSCEF: 07/24/2017 30. Plaintiffs testimony raises a question of fact as to whether she was the c·ause of her injuries or ":f i I ·I at least contributorily negligent. CONCLUSION AND ORDEJR For the reasons stated above, the court finds thai there are issues of fact yet to be resolved. Accordingly, it is i ORDERED that Defendant Central Amusement International, LLC's motion for an order l granti~g summary judgment is denied; and it is further' ' , ORDERED that Plaintiffs request for an order granting reverse summary judgment is denied; ., · This constitutes the decision and order of the court.· 7/21/2017 ~==---=-=--=~-~~- Lf DATE KELLY O' EILL LEVY, J.S.C. ) HON. KE LY O'NEILL LEVY J.S.C. f '! CHECK ONE: . CASE DISPOSED I GRANTED APPLICATION: CHECK IF APPROPRIATE: ,; 0 ' DENIED'' . SETILE ORDER ~ NON-Fl~AL DISPOSITION GRANTED IN PART SUBMIT ORDER · DO NOT POST FIDUCIARY APPOINTMENT D D OTHER REFERENCE ~ 155304/2014 SANTOS, VALERIE vs. CENTRAL AMUSEMENT Motion No. 002 t 8 of 8 Page 7 of 7

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