Katz v Sheepshead Bay Us Theatre
Annotate this CaseDecided on February 28, 2006
Supreme Court, Kings County
Sara Katz, Plaintiff,
against
Sheepshead Bay Us Theatre a/k/a MOVIES AT SHEEPSHEAD BAY, UNITED ARTIST THEATRE, UNITED ARTIST THEATRE CIRCUIT, INC., and REGAL ENTERTAINMENT GROUP, Defendants.
25659/04
Yvonne Lewis, J.
Defendants, by their attorney, have moved this court, pursuant to CPLR §3212, for an order granting summary judgment on the issue of liability as no triable issues of fact exist herein, and accordingly dismissing the plaintiff's complaint. The defendants predicate their request on the fact that the plaintiff testified at her examination before trial [EBT] as follows, 1. that she walked away from the concession stand of the United Artist theater lobby, located at Harkness Avenue, Brooklyn, NY, and slipped and fell on a sticky, wet, liquid substance, which she at no time prior had observed on the floor; 2. that she did not know how long the substance had been on the floor or if anyone had ever complained about the same; 3. that she picked herself up, walked into the auditorium, and watched a movie, after which she went home; and, 4. that it was not until the following day that she filed an accident report with the theater. In addition to the just stated, the defendants note that the theater's assistant manager testified to the following practices; to wit, that it was her practice to conduct a daily morning inspection of the premises for potential hazards; that when a hazardous situation was found, an employee or maintenance worker would remedy it; and, that if a sticky or wet area of the floor was reported, an usher would immediately mop and dry the area. Finally, the defendants argue that the plaintiff has failed to meet the necessary burden to establish liability since "in order to impose liability on a defendant in a slip and fall case, a plaintiff must prove the existence of a dangerous or defective condition, and that the defendant had either actual or constructive notice of it." (Citing, Gordon v. American Museum of Natural History, 67 NYS2d 836 [1986]; Lewis v. Metropolitan Transp. Auth., 64 NY2d 670 [1984]; Herman v. State of New York, 63 NY2d 822 [1984]; Cottingham v. Hammerson Fifth Avenue, Inc., 259 AD2d 348 [1st Dept., 1999]; Rosario v. New York City Transit Auth., 215 AD2d 364 [2d Dept., 1995]; Edwards v. Terryville Meat Co., 178 AD2 580 [2d Dept., 1991]; Lowery v. Cumberland Farms, Inc., 162 AD2d 777 [3d Dept., 1990]).
In response to the foregoing, the plaintiff points to the affidavit of one, Marc Katcher, who had accompanied the plaintiff to the movie theater, wherein he indicates, in sum and substance, that he had nearly fallen in the exact spot that the plaintiff showed him that she had fallen and sustained a fractured right wrist [while she had left him in the screening room to buy [*2]popcorn], and that he had some two hours prior to her fall advised the candy counter person as well as the facilities' manager of the stickiness in that particular spot. In addition, Mr. Katcher notes that when he returned the next day with the plaintiff to report her accident, the manager had been apologetic and told them that he had instructed that the floor be cleaned but that no one had complied with his directive. The plaintiff concedes that discrepancies exist between the Katcher affidavit and the plaintiff's EBT.
Counsel for the defendants replied to the plaintiff's opposition papers by observing that Mr. Katcher's affidavit far from being merely discrepant outrightly contradicts the plaintiff's EBT testimony in key respects, particularly with regards to his presence at the time of her fall, and the fact that she unequivocally indicated that she didn't know of anyone who had made a complaint of any substance on the floor prior to her falling on it. The defendants conclude by observing that "it is well established that a Court should not consider an affidavit on behalf of a plaintiff where it contradicts her own deposition testimony when it is solely proffered to create a feigned factual issue to defeat a motion for summary judgment." (citing, Stancil v. Supermarkets General, 16 AD3d 402, 790 NYS2d 552 [2d Dept., 2005]; Fontana v. Fortunoff, 246 AD2d 626, 668 NYS2d 394 [2d Dept., 1998]; Schiavonne v. Brinewood Rod and Gun Club, Inc., 283 AD2d 234, 726 NYS2d 615 [1st Dept., 2001]).
"A party seeking summary judgment 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" (Ayotte v. Grevasioi, 81 NY2d 1062, 601 NYS2d 463; Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923). ". . .[T]o establish its prima facie entitlement to judgment as a matter of law. . .[the defendants] needed to submit evidence that [they] neither created the condition which allegedly caused the plaintiff to slip and fall, nor had actual or constructive notice of the allegedly dangerous condition" (see Vasta v. Home Depot, 2006 WL 197438 [NYAD2d], 2006 NY Slip Op. 00504; citing Bosman v. Reckson FS Ltd. Partnership, 15 AD3d 517, 790 NYS2d 201; Simmons v. Metropolitan Life Ins. Co., 84 NY2d 972, 622 NYS2d 496; Cody v. DiLorenzo, 304 AD2d 705, 757 NYS2d 789). In the matter sub judice the defendants have certainly made a prima facie showing of lack of notice on their part so as to preclude recovery by the plaintiff. That they have done so not only on the uncontradicted attestation of the habitual business practice of their assistant manager, but on the basis of the plaintiff's EBT testimony is even more compelling to establish that they received no complaints or otherwise acquired actual notice of the alleged wetness, or that the wetness had existed for a sufficient period of time for defendants to have acquired constructive notice (See Edwards v. 727 Throggs Neck Expressway, Inc., et al., 2005 WL 3489765 [NYAD1st Dept.], 2005 NY Slip Op. 10040, citing Matcovsky v. Days Hotel, 10 AD3d 557 [2004]).
Once a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material questions of fact (see Alvarez v. Prospect Hosp., supra ). The plaintiff's proffer of her boyfriend's contradictory affidavit herein, however, is nothing short of a feigned attempt to create false issues of fact with regards to the matter of notice, and fails to adequately give rise to the existence of any credible material questions of fact sufficient to rebut the defendants' prima facie showing (See Stancil v. Supermarkets General, supra , citing Marcelle v. NY City Transit Auth., 289 AD2d 459 [2001]). Accordingly, the defendants' motion, pursuant to CPLR §3212, for an [*3]order granting summary judgment on the issue of liability as no triable issues of fact exist herein, and thereby to dismiss the plaintiff's complaint is granted in its entirety. This constitutes the decision and order of this Court.
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