Grizzell v JQ Assoc., LLC
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Grizzell v JQ Assoc., LLC 2012 NY Slip Op 31748(U) June 22, 2012 Sup Ct, Nassau County Docket Number: 2473-10 Judge: Arthur M. Diamond Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT - STATE OF NEW YORK Present: BON. ARTHU M. DIAMOND Justice Supreme Court TRIL PART: 10 ----------------------------------------------------------------------- x ALARIE GRIZZELL AND PAUL GRIZZELL, NASSAU COUNTY INDEX NO:2473- Plaintiffs, -againstMOTION SEQ NO. : 2, JQ ASSOCIATES, LLC, JQII ASSOCIATES, LLC., JQ III ASSOCIATES, LLC, WE' RE ASSOCIATES INC., METROPOLITAN SUBURBAN BUS AUTHORITY d/b/a MTA LONG ISLAND BUS and METROPOLITAN AUTHORITY d/b/a MT A REGIONAL BUS OPERATIONS, Defendants. SUBMIT DATE:04/24/12 ------------------------------------------------------------------ x The following papers having been read on this motion: Notice of Motion..................................... Notice of Cross Motion........................... Op P os iti 0 n................ ........................... .... Reply... ..................................................... Motion by defendants , Metropolitan Suburban Bus Authority d//a MTA Long Island Bus and Metropolitan Transportation Authority d//a MT A Regional Bus Operations (" MTA defendants ), for an Order of this Cour granting Sumar 3212 Judgment pursuant to CPLR dismissing the complaint of the plaintiffs , Valerie Grizzell and Paul Grizzell , is granted. Cross Motion by defendants , We re Associates , Inc. , JQ 1 Associates Associates , LLC , JQ II Associates , LLC and JQ II of this Cour granting Sumar Associates , Judgment pursuant to CPLR LLC slha JQ LLC. (" JQ defendants ) for an Order 3212 , dismissing the complaint ofthe plaintiffs is granted , and all cross claims are rendered moot. The instant motions arise from an underlying personal injur Court in Februar, 2010. The plaintiffs , therein , allege , inter case , filed by plaintiffs in this , acts of defendants breached their duty by failng to provide a safe place for the negligence in that the plaintiff, Valare Grizzell a passenger on a commuter bus , to alight. She alleges that she was caused to step down onto a speed [* 2] bump and such speed bump was not only defective , but it was ilegally installed in the middle of a marked bus stop. Paul Grizzell , Valerie Grizzell' s husband , alleges a loss of consortium due to his wife s injuries. FACTS On Februar 18 , 2009 at 8:40 a. , plaintiff, Valarie Grizzell , a passenger on the N48 bus a route that originates from the Hempstead Bus Terminal in Hempstead and ends in Jericho attempted to exit the bus at the bus stop near the Jericho Quadrangle , located at 100 Jericho Turpike , in Jericho , New York , when she slipped and fell. According to plaintiff, the bus stopped two feet from the bus stop and near a speed bump and/or hump. She disembarked from the bus and directly onto the calming device , which she described as cracked , and parially obscured by sand. a result , she tripped and fell , sustaining injuries. Plaintiff customarily traveled that bus route to get to her place of employment , located in the office complexes of the Jericho Quadrangle. The quadrangle consists of roadways , and parking lots which are owned by the JQ defendants and maintained by defendant , We re Associates , Inc. ARGUMENTS The MT A defendants contend that once the plaintiff safely stepped off the bus , in that both her feet were on the ground when she fell , their duty to her ended. Additionally, if plaintiff, pursuant to her testimony, was not able to see the alleged defect , the defendant's bus driver would have been in a less favorable position to see it based on his vantage point. Furher , implicit in plaintiffs allegation that the area should have been cordoned off, is a claim that the propert was not properly maintained and that there was a duty to warn. Such claims should be against the owners of the property, and not the MT A defendants. In support of their motion , the defendants submit copies of the pleadings , and copies of the transcripts of the examinations before trial of the plaintiff, Valerie Grizzell , Cal Fromer , bus driver at time of subject accident, and Robert Bloom , Vice-president of defendant entity, We re Associates. In opposition , plaintiffs argue that the MT A defendants owed plaintiff, V. Grizzell , a duty to provide a reasonably safe area for her to exit the bus , and the bus driver s stopping the bus on a speed bump, a violation of company and/or industry policy, created an unsafe condition. Furher , the defendants owed a duty to maintain the area , and that the speed bumps were either not maintained [* 3] and/or ilegally/improperly placed in the bus stop area. Plaintiffs submit as evidentiar support copies of the pleadings; the above referenced copies of transcripts; photographs of the accident site indicating the location and condition of the speed bump (it is noted that the picture is undated and the speed bump is painted yellow); an aricle entitled; " Guidelines for the Design and Application of Speed Humps , A of the Institute of Transportation Engineers; Proposed Recommended Practice affidavit from expert engineer regarding the location of speed bumps in Kohl' s Deparment Store parking lot , in Yonkers , New York , dated March , 2008; and Town of Hempstead surey of the quadrangle, indicating that there is no existence of the subject speed bump. The JQ defendants, in their cross motion , argue that the plaintiffs testimony is contradictory in that she attributes the cause of her slip and fall to the sand on the speed bump and then claims it was caused by her exiting the bus onto the speed bump. In addition , there is nothing in evidence to support that defendants had knowledge of the alleged defective condition prior, and they were not aware of any complaints and/or records regarding any prior similar accidents or incidents , including the subject accident on bar. DISCUSSION The standards for summar judgment are well established. A Cour may grant sumar judgment where there is no genuine issue of a material fact , and the moving entitled to sumar (Alvarez judgment as a matter of law (1986)). Thus , when faced with a sumar v. par is therefore Prospect Hosp. 68 NY2d 320 324 judgment motion , a cour' s task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter. Rather , its task is to determine whether or not there exists a genuine issue for trial (Miler v. Journal-News 211 AD2d 626 (2nd Dept. 1995)). The burden on the par moving for summar judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the (Ayotte absence of material issue offact v. Gervasio 81 NY2d 1062 (1993 J). Once the initial burden has been met by movant , the burden shifts to the par opposing the motion to submit evidentiar proof in admissible form , sufficient to create material issues of fact requiring a trial to resolve (Stukas v. Streater 83 Ad3d 18 , allegations or assertions are insufficient 25 (2d Dept 2011)); Mere conclusions and unsubstantiated (Zuckerman v. New York 49 NY2d 557 562 (1980)) even [* 4] v. (Aghabi if alleged by an expert Serbo Dept. 1998)). 256 AD2d 287 Generally, a defendant who moves for summar judgment in a slip-and- fall case has the initial burden of making a prima facie case that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it Ny Slip Op 1938 (2 Dept 2008)). Costco Wholesale Corp. v. (Sloane It has been long settled that to constitute constructive notice , a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant' (Spindel! employees to discover and remedy it Dept , 2012); v. Negri Stop Shop, v. Town of Hempstead 92 AD3d 669 670- 671 (2 65 NY2d 625 626 (1985)). Accordingly, that a propert owner who has actual knowledge of an ongoing and recuring dangerous condition can be charged with (Petri constructive notice of each specific reoccurence of that condition AD2d 444 (2 nd Dept 2001)); v. 2000); Benn Osorio v. v. Half Off Cards, 284 Wendell Terrace Owners Corp. 276 AD2d 540 (2nd Dept Municipal Hous. Auth.for City of Yonkers, 275 AD2d 755 (2 Dept 2000)). It is noted that the plaintiff, in order to allege liability against both sets of defendants , argues negligence in that the MT A bus driver caused her to alight from the bus on to a dangerous condition and that the JQ defendants failed to maintain the speed bumps and the bus stop area , and ilegally installed the speed bumps. The Court wil first review the issue of liabilty against the MT A defendants. While it is the law that a common carier owes a duty to its passengers to stop at a place where they may safely disembark and leave the area, liability rests upon a finding that the placement of the bus dictates that the passenger , in order to exit the bus , must negotiate a dangerous or defective path. v. (Malawer a common carer by the jury. Id. AD3d 293 , 295 (1st Dept 2005)). Whether New York City Transit Authority18 has breached its duty in this regard is generally a question of fact to be determined To prevail on their motion for sumar judgment , defendants are required to set forth evidentiar facts sufficient to entitle them to judgment as a matter of law. Id. A bus company may be held liable for a passenger s injuries where such passenger is struck by a car upon crossing the street after having alighted from the bus at an unscheduled stop or where a defect in the condition of the ground in the immediate vicinity where a passenger alighted from the bus caused the passenger to trip and fall" (Kadymir v. New York City Transit Authority, 55 AD3d [* 5] 549 (2nd Dept 2008)). The fact that plaintiff had both feet on the ground after she alighted the bus does not , in and of itself, relieve the MTA defendants from liability. Garcia-Martinez In analyzing the instant matter under (A) (Sup. Ct. 2008) order aff' d, 68AD3d 428 v. City of New York, 20 Misc. 3d 1111 (lSI Dep ' t 2009), 891) where that plaintiff slipped on ice immediately after exiting the New York City bus , that cour noted that her husband safely exited the bus in the exact same location without slipping and fallng. The cour company s motion for summar judgment. Id. granted the defendant bus Here , the plaintiff, at her deposition , testified that two passengers safely disembarked in the exact same location immediately before she did. In sum , the MT A defendants have met their prima facie burden in that they contend they did not receive any reports of any such hazard nor did the bus driver let his passengers disembark on a speed bump, nor was he obligated to inspect the area prior to makng the stop (see Engram 190 AD2d 536 (1 st Dept 1993)). There Manhattan and Bronx Surface Transit Operating Authority, is nothing in the record to indicate that the defendants were aware , or reasonably should have been aware , of any defect in the area near the bus stop where the plaintiff tripped and fell v. (see Forminio City of New York 68 AD3d 924 (2nd Dept 2009)). Based on the plaintiffs own description of the condition , that the " depressed" bump was the same color as the asphalt, the driver could not possibly see the defect from his vantage point, paricularly if she , who was closer to the alleged condition , did not see it herself until after she fell. The JQ defendants contend that they had no actual or constructive knowledge of any defective and/or hazardous condition. There were no prior incident reports regarding any pedestrian accidents in the area where the subject accident occured. There was no accident report on record regarding the plaintiff s accident , which was supported by the plaintiffs herself in that she did not file a report. Once the movants have met their burdens , the burden shifts to the non-movants to rebut the inference of entitlement to summar judgement (Zuckerman v. City of New York 49 N. Y. 2d 557 562 (1980)). The plaintiffs , in opposition , submit a plethora of evidence regarding speed bumps and their improper placement to support that a dangerous condition existed. They also argue that the lots and roadways ofthe quadrangle were not properly maintained , while also decrying the effectiveness of its sanding operations for the treatment of snow and ice. The foregoing, however , does not speak [* 6] to the issue as to whether the MT A defendants failed in their duty to safely discharge the plaintiff from the bus. To support their position , plaintiffs submit expert testimony. Although there is no documentation as to when the matter was certified for trial , it is undisputed that the expert was not identified until after such certification. However , even if this Cour were to allow the expert testimony, it must be disregarded on other grounds. Opinion evidence must be based upon facts in (Espinel the record or personally known to the witness v. Jamaica Hosp. Med Ctr. 71 AD3d 723 724 (2nd Dep t 2010)). The expert in the instant matter has no knowledge of the facts of the case and his opinion was given to support a different and completely unelated matter. Plaintiffs reliance on Kohl' s Dept. Stores, Inc. 67 AD3d 618 (2nd Dep tJ is also misplaced as the facts at bar are Brancaccio, distinguishable. In Brancaccio parking lot of defendant' s store. the plaintiff tripped over the decayed end of a speed bump in the Id. In response to the defendant's motion , the plaintiff submitted the affidavit of the professional engineer , who opined that there were other yellow painted lines on the surace which could cause a pedestrian to incorrectly discern whether there was an elevation where the yellow painted speed bump was located. Id Such a condition is not present in the instant case. As to the evidence , the " Guidelines for the Design and Application of Speed Humps , the Cour taes note of the introductory language Proposed Recommended Practice of the Institute of Transportation Engineers. In general , evidence of guidelines is not conclusive , and such evidence is not a necessar element ofa plaintiffs proof (Ells v. Eng, 70 AD3d 887 , 891 (2nd Dep t 2010)). Although noncompliance with such a customar practice or industry standard may be evidence of negligence , the failure to abide by guidelines or recommendations that are not generally-accepted standards in an industry will not suffice to raise an issue of fact as to a defendant' s negligence (Carlino v. Triboro Coach Corp. 22AD3d 624 , 625 (2nd Dep t 2005J). Accordingly, plaintiff canot convert these industry recommendations to an industr judgment (see Diaz v. New York Downtown Hosp standard in order to avoid sumar , 2S7 AD2d 357 (1 st Dep t 2001)). Regarding the pictorial evidence , although plaintiff identified certain photographs as being accurate depictions the location of the fall , there is no evidence as to when the photographs were taken and she did not testify that the supposedly defective condition reflected in the photographs was in fact substantially [* 7] the same condition as that which existed at the time of her fall. Accordingly, there is no proof that this alleged defective condition existed to justify the inference that the defendants had constructive notice of it. Furher , in the absence of the necessar evidence to authenticate the (see Saks are therefore not competent evidence Dep v. 1999);Truesdell v. Yeshiva of Spring Valley, photographs , they Inc. , 257 AD2d 615 (2nd Rite Aid of New York, Inc. 228 AD2d 922 (3rd Dep t 1996)). What is left of plaintiffs ' evidence is Valerie Grizzell' s own testimony and the pleadings. Plaintiffs , in their description of the " calming device " and/ or speed bump/hump, referred to it as " cracked , corroded uneven , upraised , depressed and parially bus stop... (see obscured by sand and Affirmation in Opposition , Exhibit A plaintiffs describe the calming device as both upraised failing to extend to the curb of the thirt-second 9). It is noteworty that the and depressed. Viewing the evidence in the light most favorable to the plaintiffs, and affording them the benefit of every reasonable inference , this Cour finds Valerie Grizzell' s testimony as to the cause of her accident , to be inconsistent. Plaintiff first attibuted the cause of her fall to the sand on the speed bump: Q... Did you ever come to lear or figure out what caused you to actually slip? A. I slipped on the speed bump because I guess it was sandy. Q. ... Did you see or feel ice , sand , or anything as the accident was happening? A. Sand. Q. You saw it or you felt it? A. Felt it and saw it. Q. When for the first time did you see sand on the speed bump? A. When I was down there with the speed bump on the ground. Q. Right afer the accident? A. Right. (Affrmation in Opposition , Exhibit G , Tr. V. Grizzell , p. 37 , In. 8 - 25) Then , later in her deposition , plaintiff testified that the sand had nothng to do with her slipping and fallng: Q. Are you claiming that there was sand on the speed bump that made you slip or the mere stepping onto the speed bump caused you to slip? A. Stepping onto the speed bump. [* 8] Q. So it had nothing to do with the sand that you saw laying there? A. No.... (p. 80 In. 9 - 16). It is also noted that plaintiff also testified that she did not take a look at the speed bump at any point immediately following the accident (p. 29 , In. 20- 24), which contradicts her later testimony that she saw and felt the sand on the speed bump right after the accident. Furher, she could not recall dimensions , like how high the speed bump was raised from the ground , only recallng that it was the same color as the ground (p. 30 In. 1-24). Additionally, plaintiff identified the area where she fell from being shown the photographic evidence but the only thing that she was able to recall with certainty was that the speed bump was not painted yellow as represented in the pictures. There is no other evidence to support that contention , nor is there evidence indicating that the pictues were taen during the time period as to when the accident occured. This casts doubt not only as to whether plaintiff actually slipped on a speed bump, but also as to whether the speed bump was in the condition as described in the complaint. After a review of the plaintiffs deposition testimony, it is clear that she canot state exactly what condition caused her to trip and fall , and canot describe in any meanngful way the dimensions or nature of that condition ( see Schectel v. 264 AD2d 512 (2nd Dept 1999)). Furher , plaintiff also Southland Corp., testified that she did not experience a slippery condition in the parking lot at any time prior to the accident: Q. Are you aware of any other people or incidents involving people slipping on any speed bumps in that quadrangle prior to the accident? No. Q. Did you ever complain to anybody about speed bumps or slippery conditions in the parking lot and in the quadrangle at any time before the accident? A. No... (p. 48 , Ln. 23 - , p.49 In. 1 - 8). A plaintiffs inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant' s negligence , if any, proximately caused the plaintiffs injuries would be based on speculation. In opposition , the plaintiff failed to raise a triable issue of fact. The varing [* 9] arguments as set forth in plaintiffs deposition testimony was that she slipped and fell because there was sand on the speed bump, and because the bus driver let her exit from the bus on a speed bump-- sand not being a factor. Since it is just as likely that the plaintiffs fall could have been caused by a loss of balance or a misstep given that there is nothing in the record to support that other passengers had fallen due to similar condition , or that the condition she described even existed on the day of her accident , the plaintiff failed to raise a triable issue of fact as to the cause of the accident. The plaintiffs remaining contentions either are without merit or need not be reached in light of this Court' s determination (see Alabre v. Kings Flatland Car Care Center, Inc. 84 AD3d 1286 (2nd Dept 2011)). Accordingly, plaintiffs did not meet their prima facie burden to defeat the defendants motion and cross motion to dismiss the complaint. The MT A defendants motion to dismiss is granted , the JQ defendants cross-motion to dismiss the complaint is granted , and the cross- claims are therefore rendered moot. This constitutes the decision and order of this Court. DATED: June 22 , 2012 ON. ARTHUR M. DIAMOND ENTERED JUN To: NASSAU rlb2n17 COUNTY COUNTY CLERK' S OFFICE Attorney for Plaintiff Attorney for Defendant ELOVICH & ADELL ZAKLUKIEWICZ, PUZO, & MORRSSEY, LLP. 164 West Park Avenue Long Beach , New York 11561 2701 Sunise Highway, Suite 2 PO. Box 389 Islip Terrace , New York 11752
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