Barker v Brucia

[*1] Barker v Brucia 2010 NY Slip Op 50986(U) [27 Misc 3d 1231(A)] Decided on June 3, 2010 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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, 2010
Supreme Court, Queens County

Bruce Barker, Plaintiff,

against

OK C Brucia and 7 Eleven, Inc., Defendant.



18549/08

Robert J. McDonald, J.

This action allegedly involves an accident which occurred at 69-58 Main Street, Flushing, New York (hereafter "premises") when the plaintiff slipped and fell inside the 7 Eleven, Inc (hereafter "7-Eleven") store in an aisle in which a "Slushie" machine was located.

The plaintiff was deposed on July 21, 2009 at a pre-trial deposition. The plaintiff is nearly 50 years old. The accident occurred March 31, 2008 [14]. He was present at 7:30-8:00 p.m. at the 7-Eleven in Flushing, Queens [15]. He was accompanied by Amber Halpern who drove with him to get a "Slushie" or "Slurpee"[17]. There were three employees and five or six patrons present [19]. He entered the store passed a magazine rack, turned right towards the "Slushie" machine. Halpern was in front of him[22]. Halpern stopped in front of the machine, stopped and then moved on [24] "Q. Did you continue to follow her at that point? A. Yes, I did. Q. As you continued walking down that aisle, what then happened? A. I walked towards the Slurpee machine behind her, and when I got in front of the Slurpee machine, I just went down. That is where I slipped." [25] He had seen Halpern "pause in front of that area and then continue to walk" but he did not see her slip [26]. The Slurpee machine was to his left [27]. He was looking straight ahead at Halpern [27]. "Q. Now at any time before you slipped, did you look down at the floor in front of the Slurpee machine? A. Actually, no. I was looking at Amber."[28] He stated that he did not look at the floor up until the time he slipped and fell [28]. "Q. Do you [*2]recall what type of floor that in that aisle? A. Yeah. A - - there was a regular floor, shiny floor with a mat towards the left. Q. When you say a regular floor, was it a wooden floor, tile, carpet? A. It is a tile floor. Q. Do you remember the color of the tile? A. Light beige color. Q. At any time before you slipped and fell, did you see any debris on the surface of the floor in the area of the Slurpee machine? A. It wasn't until I fell that I felt the floor wet, slushie and cold."[29] He was walking at a moderate pace wearing sneakers [30]. His right leg just slipped back and he fell forward [31]. He landed on his hands and knees [32]. He claimed that there was one witness there [33]. The residue on the floor was icy and area of two to three feet [35]. He looked up the Slurpee machine and saw that it was wet "The Slurpee was running down the side"[36,38]. There was a black mat along the left side of the front of Slurpee machine [64]. "Q. When you fell at that time, were you on the mat? A. Yes. Q. When your foot started to slip, was it on the mat at that time? A. I was on the mat when I slipped back, yes. Q. How wide was the mat? A. Two feet."[64]It was a black mat [65]. There was a wet floor sign which was apparently "around the corner" from the Slushie machine [68]. "Q. So was it visible as you walked towards that Slushie machine? A. No. It was in this recessed areas here (indicating [pointing to a photograph])" [69]. The plaintiff saw the sign after he had fallen [69]. "Q. Was it a fold-up sign? A. I believe so."[71].

OK C BRUCIA testified at a pre-trial deposition on July 21, 2009. Ms. Brucia is a franchisee for 7-Eleven who operates the premises. She first became aware of the accident when she was informed by one of his employees [12]. She testified that she had checked the area right before she left the store at 7:00 p.m. the night of the accident [15]. "Q What did you see when you checked the area of the Slurpee machine? A We put the mat on that day and that's it. We put the sign on it. Q Did you see any overflow on the Slurpee machine" A No. Q On the floor? A No." [16] There is an ice coffee machine and fountain soda and Slupree machine in the same area, however, the mat goes in front of the Slurpee machine [17]."Q MR. SCHNEPP: How often did you put it out? A How often? I don't know whether or not we had put it on that day." [17-18]. "Q Why did you have to put - - you said at that time you had to put it out; what was the reason? A I think I know why. Because we wanted to change the tile underneath so we put it on. Q What was wrong, if anything, with the tile? A The tile was loose. That's why we covered it." [18] One or two tiles were loose [28]. She called the 7-Eleven maintenance to come and fix it [20]. "Q When did they come to fix it? A I don't know. They came right away."[20] Other then the loose tile she did not normally put down a mat which had been put down for one or two [*3]days [20]. The mat is normally placed at the cashier's counter [21]. Ms. Brucia stated that "occasionally" the Slurpee area can get wet and her procedure was to "constantly" check and clean the area [23]. The Slurpee area is "constantly clean." [23] She also had a "Caution sign" displayed "[r]ight in front of the Slurpee machine". [24] It was a yellow triangular sign [25]. "Q Were you allowing people to get Slurpees that day? A Yes. They should not go in there that day. They should not."[26]. "Q Out of order for the machine ? A Yes. SO they don't touch that. That's the purpose. I put in the caution sign not to go in that area."[26] On March 31, 2008 there were a total of six Slurpee dispensers in the store [31]. "Q Did Slurpee material ever get on the floor during the day on regular workdays? A Sometimes, yes." [33] She told her employees to clean the area "[e]very five or ten minutes" [33]. She stated she never had any problems with the Slurpee machines [38]. Upon looking at work orders Ms.Brucia. "Q Does this refresh your memory if you had any problems with the Slurpee machine? A. Yes. Q Did you have some? A. I think we had some." [42] "Q Did the Slurpee machines ever leak before the accident? A Sometimes, yes." [42]

Thomas Cerwas the Loss Prevention Manager for 7-Eleven testified at a pre-trial deposition held July 21, 2009. Franchisees are supposed to follow the franchise agreement [Exhibit "1"][8]. He stated that if there were an accident they were supposed to call 7-Eleven and report it, which was not done [11]. He visits the locations every two weeks [18]. He never received the work order for the tiles [19].

The defendant submits an affidavit from Mr. Cerwas in which he states "the subject store was operated, in all respects, by 7-Eleven's independent franchisee, OK C. Brucia, pursuant to a franchise agreement."

The Franchise Agreement submitted in support of 7-Eleven's motion to dismiss as an Exhibit is 34 pages. "Page 5 ¶8. Lease" provides "We may, at our option, remove or replace any of the 7-Eleven Equipment or add new 7-Eleven Equipment....We may provide you with replacement Equipment if certain Equipment is damaged ....""Page 6 ¶8 (4)(b)" provided that: "You may not modify, alter, remodel or add to the Store or 7-Eleven Equipment or discontinue using any of the 7-Eleven Equipment required under the 7-Eleven System without first obtaining our written consent." "Page 14 ¶16. 7-Eleven Foodservice Standards (d)" "We will the right to enter the Store...for the purpose of conducting inspections...."

Sun Kim an employee of 7-Eleven testified at a pre-trial [*4]deposition held August 26, 2009. The floor was mopped once each day [11]. Each Slurpee machine has a part that catches the liquid that comes out [20]. "Q What do you call that? A There's like a tray and also it's a little sloped and whatever falls off would go inside and then go outside through the hole. Q Okay, it's like a drain? A Yes." [20] They trays never get clogged [21, 25]. "Q Did the tray ever overflow onto the floor, the liquid that was in the tray ever overflow onto the floor? A Hardly ever, but there are cases where the customers would take the Slurpee and then drop the liquid by accident."[21] "Q The customers dropping liquid, did that happen every day? A Some days once a day, some days twice a day, some days not at all." [22] He stated he would go over to the area "after every customer left" to check [22]. There was a mat on the floor the on March 31st in front of the Slurpee machine on the right with two dispensers [34]. There was a triangular yellow sign which depicted a person falling [42]. "Q Was there any sign on the Slurpee machine telling customers not to use it or that it was closed or something like that? A No. Q Why was the sign there, the one that was on the floor? A I don't know for sure, but I think the owner put it there because of the mat that was placed there." [43-44] "Q Did you look at the mat when you went over to the person who was on the floor? A Yes. Q Was there any liquid on the mat? A No. Was there any liquid on the floor near the mat? A No. Q Any liquid in front of the any of the machines? A No." [47-48] Right before the accident there had been kids near the machine so he "went over" and was just watching them[52,53]. "Q Did you mop or clean the floor in the area of the Slurpee machines at any time that night before the accident happened? A Not with a mop, no. Q With something else? A I would just wipe any liquid if the customers leave any." [54] "Q How long before the accident did you do that? A Maybe three, four mintues. Q And did you do any wiping of the floor? A No." [54-55] Mr. Kim stated that there was video surveillance cameras in the store which show the area where the Slurpee machines are [56].

From the plaintiff's deposition it is clear that he knows what caused his fall so that his suit is not based on mere speculation (Miller v 7-Eleven, Inc, 70 AD3d 791). From the plaintiff's testimony it is the plaintiff's opinion that he fell because of a slippery condition caused by a leaky Slurpee machine, whose contents ran to the floor, which was covered by a black mat temporarily put down to cover a broken floor. It is plaintiff's testimony that this obscured his ability to see such run-off. The owner stated that he had a small yellow triangular "Caution" sign, which the plaintiff testified he could not see because of where it was placed. Mr. Brucia testified that the sign was to tell customers to stay out of the area, although Mr. Kim, an employee, denied that it was so. In fact, he testified that the [*5]Slurpee machines were being used.

The defendant has failed to demonstrate, as a matter of law, that the condition which caused the plaintiff to slip and fall was open or obvious and that 7-Eleven as franchiser failed to demonstrate that the plaintiff did not raise a triable issue of fact which would preclude summary judgment (Holly v 7-Eleven, 40 AD3d 1033; see, Toppel v Marriott International, Inc, 2008 U S Dist Lexis 56266 [S.D.N.Y, 2008]).

Whether 7-Eleven maintained the right to direct and control the manner and degree to which its franchisee could respond to the Slurpee machine's oozing discharge, and the use of the mat which covered the broken floor over which the mat was placed, are issues which the trier of fact must resolve (see, Hong Wu v Dunkin' Donuts, Inc, 105 F Supp2d 83 aff'd 4 Fed Appx 82 [U.S.C.A. 2nd Cir, 2001]; Repeti v McDonalds, 49 AD3d 1089; Andreula v Steinway Baraqafood Corp, 243 AD2d 596).

Accordingly, defendants' motion for summary judgment is denied.

So Ordered.

Dated: Long Island City, NY

June 3, 2010

______________________________

Robert J. McDonald

J.S.C.