Monoyos v Business Network Connections, Inc.
Annotate this CaseDecided on September 14, 2006
Supreme Court, Nassau County
Pamela Monoyos and George G. Monoyos, Plaintiffs,
against
Business Network Connections, Inc., 601 Old Country Rd. Corp., John's Farms And Captain Joe's Fish Corp., Defendant.
17405/04
Thomas Feinman, J.
The defendants move for an order pursuant to CPLR §3212 granting summary judgment and dismissing the plaintiff's complaint. The plaintiffs submit opposition. The defendants submit a reply affirmation.
The plaintiff, Pamela Monoyos, commenced this personal injury action as a result of a slip and fall at the defendant's premises, a grocery store. While the plaintiff testified that she did not see what had caused her to slip prior to her fall, plaintiff claims that after her fall she observed squished dirty string beans on the ground where she fell, in the main aisle where vegetables are on display. The plaintiff had not filled out an incident report prior to leaving the defendant's store, and submits that she had no receipt for the chopped meat that she left with because she was not charged for such product.
The defendants' manager, Greg Catalano, testified that the first time that he became aware [*2]of the plaintiff was when he was served with the summons. Mr. Catalano provided that the store's policy is that once a slip and fall incident is reported, an accident report is filled out, and that in this matter, an accident report does not exist. Mr. Catalano also testified that the produce section is cleaned hourly, on a daily basis, and that he was not aware of any prior complaint about the produce department floor being dirty or slippery.
In order to impose liability upon the defendants, there must be evidence tending to show the existence of a dangerous or defective condition, and that the defendants either created the condition or had the actual knowledge of it. (Gordon v. American Museum of Natural History, 501 NYS2d 646 {67 NY2d 836} ). To constitute notice, a defect must be visible and apparent and must exist for a sufficient period of time prior to plaintiff's accident to permit the defendant to discover it and remedy same. (Rabadi v. Atlantic & Pacific Tea Co., Inc., 268 AD2d 418). Once the movant for summary judgment has met his or her burden, it is incumbent upon the party opposing said motion to produce evidentiary proof in admissible form sufficient to establish material issue of fact which warrant a trial. (Alvarez v. Prospect Hosp., 508 NYS2d 923 {68 NY2d 320} ). Though summary judgment is a drastic remedy, summary judgment is available in a negligent action where there is no genuine issue to be resolved at trial. (Id). A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist. (LoBreglio v. Marks, 105 AD2d 621, aff'd, 65 NY2d 620; Friends of Animals, Inc. v. Associated For Manufacturers, Inc., 46 NY2d 1065). A shadowy semblance of an issue is not enough to defeat a motion for summary judgment. (LoBreglio v. Marks, 105 AD2d 621).
In the instant case, the defendants have satisfied their burden on this motion for summary judgment by submitting evidence which demonstrated that the defendants neither created the allegedly dangerous condition, nor had actual or constructive knowledge of it. The defendants submitted the deposition testimony of the store manager which demonstrated that defendant had neither created, nor had actual or constructive notice of the alleged dangerous condition which the plaintiff claims caused her to fall. As the defendants have met their burden, the plaintiff must raise a triable issue of fact to defeat the defendant's motion.
In opposition to the motion, the plaintiff submits the affidavit of a non-party, Christine Cestari, who avers that she was a customer at defendant's premises on the date of the incident, and that at approximately "three to four o'clock in the afternoon", (approximately two to three hours prior to plaintiff's fall), she recalled seeing an "area of squished string beans near the front of the produce aisle". While the defendants reply that this is the first time the defendants have ever heard of non-party, Christine Cestari, and that plaintiff had not listed Christine Cestari as a "witness" to the plaintiff's fall, non-party, Christine Cestari, does not aver that she did in fact witness the incident. Rather, the plaintiff submits the affidavit of Christine Cestari to demonstrate that the alleged dangerous condition, squished string beans near the front of the produce aisle, existed for a sufficient period of time prior to plaintiff's fall, to wit, approximately two to three hours prior, to permit the defendant to discover it and remedy it. In any event, the role of this Court is to determine if bona fide issues of fact exist, and not to resolve issues of credibility. (Knepa v. Tallman, 278 AD2d 811). [*3]
While summary judgment is properly granted when the opponent of the motion raises only feigned issues of fact, this Court will not strain to find feigned issues of fact in the affidavit of Christine Cestari. The affidavit submitted by Christine Cestari does not appear to contradict the plaintiff's testimony in this matter. This Court must decide, as a matter of law, whether the evidence viewed in the most favorable light to the plaintiff, will support a negligence verdict against the owner or possession of land. (Akins v. Glen Falls City School District, 441 NYS2d 644 {53 NY2d 325}). If varying inferences are permissible, the case must go the jury. (Quinlan v. Cecchini, 394 NYS2d 872 {41 NY2d 686} ).
In viewing the plaintiff's evidence in the most favorable light, the plaintiff's opposition has raised an issue of fact defeating defendants' motion. Therefore, the defendants' motion for summary judgment is denied.
E N T E R :
________________________________
J.S.C.
Dated: September 14, 2006
cc: Huenke & Rodriguez, Esqs.
Sacco & Fillas, LLP
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