Barber v Cornell Univ. Coop. Extension of Orange County

[*1] Barber v Cornell Univ. Coop. Extension of Orange County 2012 NY Slip Op 52067(U) Decided on September 27, 2012 Supreme Court, Orange County Bartlett, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2012
Supreme Court, Orange County

Tami-Anne Barber, Plaintiff,

against

Cornell University Cooperative Extension of Orange County, ORANGE COUNTY AGRICULTURAL SOCIETY and ORANGE COUNTY FAIR, INC., Defendants.



4504/2011

Catherine M. Bartlett, J.

This is an action in personal injury stemming from an alleged trip and fall accident which occurred on July 26, 2010 in a barn/stall located on the Orange County Fairgrounds in Middletown, New York. Defendant Orange County Agricultural Society ("OCAS") owns the property. Said defendant entered into a 99 year lease with the predecessor of defendant Cornell University Cooperative Extension of Orange County ("Cornell") where Cornell was leased 1 acre of the 90 acre parcel. The lease encompassed two buildings, Buildings 1 and 2, and it was in Building 2 in which plaintiff allegedly tripped and fell. It is uncontroverted that the public was allowed in Building 2 to view the animals in the stalls contained in that building. The stalls contained pieces of wood on the floor extending 2-4 inches above the floor surface to contain hay placed in the stalls. While chasing after one of her children who entered one of the stalls to view the animals, the plaintiff tripped and fell over the wood containment boards extending up from the floor. Plaintiff testified that the lighting was poor at the time and in fac that there were only two lights that she recalled being on in Building 2. Plaintiff further stated that she did not see the board over which she tripped prior to the accident. Plaintiff stated that after the accident, she [*2]noticed the board and it was an ordinary wood color.

Cornell's witness testified that the board over which plaintiff allegedly tripped and fell was painted white to alert pedestrians of its existence, that the lighting was more than adequate and that there was nothing wrong with the board itself. Cornell takes that position that it was plaintiff who failed to watch where she was going, focused on retrieving her child, which caused her to trip and fall. In support of its motion, Cornell submits the affidavit of an expert engineer who opines that there were no code violations in Building 2, the lighting itself was more than adequate based upon light measurements he took almost 2 years after the accident, and essentially that plaintiff was the proximate cause of her own accident by not looking where she was going at the time.

OCAS cross-moves for summary judgment as against plaintiff and further moves for summary judgment as against Cornell on the cross-claims. With respect to OCAS's cross-motion as against plaintiff, that portion of the motion itself must be denied. CPLR §3212(b) states in pertinent part that "a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions." The pleadings are a required part of the proof submitted in support of a motion for summary judgment. S.J. Capelin Assoc., Inc. v Globe Manufacturing Corp., 34 NY2d 338, 341 (1974). Failure to include pleadings in support of a motion for summary judgment requires that said motion be denied, regardless of the merits of the motion. Niles v County of Chautauqua, 285 AD2d 988 (4th Dept. 2001); Deer Park Assoc. v Robbins Store, Inc., 243 AD2d 443 (2nd Dept. 1997); Lawlor v County of Nassau, 166 AD2d 692 (2nd Dept. 1990); Somers Realty Corp., v Big "V" Properties, Inc., 149 AD2d 581 (2nd Dept. 1989); Freeman v Easy Glider Roller Rink, Inc., 114 AD2d 436, 436-437 (2nd Dept. 1985).

In Williams v County of Genesee, 289 AD2d 1026 (4th Dept. 2001), the Court held that the failure of a party to include a copy of the pleadings filed in the action in support of its cross-motion requires that summary judgment be denied regardless of the merits of the cross-motion. In DiSano v KBH Construction Co., Inc., 280 AD2d 951 (4th Dept. 2001), the Court explicitly held that defendant's failure to include a copy of its answer in its papers in support of its cross-motion was fatally defective and required denial of the cross-motion as a matter of law. Id. at 952; See, Nationwide Mutual Insurance Co. v Piper, 286 AD2d 903 (4th Dept. 2001); Gallagher v TDS Telecom, 280 AD2d 991 (4th Dept. 2001).

OCAS's cross-motion, if for no other reason, must be denied in its entirety for failure to comply with the CPLR's specific requirement that a such a motion for summary judgment be supported by the pleadings. Whether a cross-motion or a motion in chief, the requirement that pleadings be included in support thereof exists, and failure to do so is fatal.

Moreover, OCAS improperly cross-moved for summary judgment against plaintiff. The plaintiff was not the original moving party (Cornell was the original moving party). A cross-motion is deficient if it seeks affirmative relief, i.e. summary judgment, as against a nonmoving party. CPLR 2215 states in pertinent part that "At least three days prior to the time at which the motion is noticed to be heard, a party may serve upon the moving party a notice of cross-motion demanding relief . . ." (emphasis supplied). In Mango v Long Island Jewish-Hillside Medical Center, 123 AD2d 843 (2nd Dept. 1986), the Court held "A cross motion is an improper vehicle for seeking affirmative relief from a nonmoving party . . ." Id. at 844. Thus, OCAS's cross-[*3]motion as against plaintiff is procedurally defective and is denied.

OCAS's cross-motion for summary judgment seeking dismissal of the cross-claims of its co-defendants is granted without opposition. Cornell submitted no opposition whatsoever to OCAS's cross-motion on the cross-claims, and therefore OCAS's cross-motion is granted only as to the co-defendant's cross-claims.

The Court next turns its attention to Cornell's motion for summary judgment as against plaintiff. As a preliminary matter with respect to Cornell's expert, the Court will not consider his affidavit. The expert affidavit is replete with conclusory allegations and speculative opinions of an expert based upon an examination of the premises approximately two-years post-accident and photographs which themselves have not been authenticated. Therefore, there is no evidentiary predicate to demonstrate that the photographs are a fair and accurate representation of the premises as they existed on the date the accident occurred. As such, the photographs are without evidentiary value (see generally, Pirie v Krasinski, 18 AD3d 848, 850 (2nd Dept. 2005); Fitzgerald v Sears, Roebuck & Co., 17 AD3d 522 (2nd Dept. 2005)).

Moreover, plaintiff's expert failed to indicate whether the lighting conditions he observed were the same as they were at the time of plaintiff's accident. Plaintiff testified that only two lights were working at the time. Plaintiff's expert's conclusions are based upon all of the lights working. There is no indication that the expert's inspection mirrored the conditions at the time of plaintiff's accident and therefore the affidavit lacks any evidentiary value.

Summary judgment is a drastic remedy that "should not be granted where there is any doubt as to the existence of a triable issue" (citations omitted). In its analysis of such a motion, a court must construe the facts in a light most favorable to the nonmoving party so as not to deprive that person his or her day in court (citations omitted). Russell v A. Barton Hepburn Hosp., 154 AD2d 796, 797 (3rd Dept. 1989); See also, Mascots v Oarlock, 23 AD2d 943, 944 (3rd Dept., 1965).

While summary judgment is an available remedy in some cases, its dire effects preclude its use except in "unusually clear" instances. Stone v Aetna Life Ins. Co., 178 Misc. 23, 25 (Sup. Ct., New York County,1941). "A remedy which precludes a litigant from presenting his evidence for consideration by a jury, or even a judge, is necessarily one which should be used sparingly, for its mere existence tends to alter our jurisprudential concept of a day in court.'" Danger v Zea, 45 Misc 2d 93, 94, (Sup. Ct., Albany County, 1965), aff'd 26 AD2d 729 (3rd Dept.1966). Given the fact that summary judgment is the procedural equivalent of a trial, granting summary judgment requires that no material or triable issues of fact exist. When doubt exists or where an issue is arguable, or "fairly debatable," summary judgment must be denied. Bayesian v HF Horn, 21 AD2d 714 (1st Dept. 1964); Jones v County of Herkimer, 51 Misc 2d 130, 135 (Sup. Ct., Herkimer County, 1966); Town of Preble v Song Mountain, Inc., 62 Misc 2d 353, 355 (Sup. Ct., Courtland County, 1970); See also, Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 404 (1957). The drastic remedy of summary judgment is rarely granted in negligence cases since the very question of whether the defendant's conduct was indeed negligent is a jury question except in the most glaring cases. See, Johannsdottir v Kohn, 90 AD2d 842 (2nd Dept. 1982).

Courts are not authorized to try issues in a case, but rather to determine whether there is an issue to be tried. Esteve v Abad, 271 AD2d 725, 727 (1st Dept. 1947). "Issue-finding, rather [*4]than issue-determination, is the key to the procedure. If and when the court reaches the conclusion that a genuine and substantial issue of fact is presented, such determination requires the denial of the application for summary judgment." Id.; Sillman, 3 NY2d at 404.

According to the Court of Appeals, "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [citations omitted]. Failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the opposing papers [citations omitted]." Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985); Ayotte v Gervasio, 81 NY2d 1062, 1063 (1993); Finkelstein v Cornell University Medical College, 269 AD2d 114, 117 (1st Dept. 2000).

It is well established that "[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985); Ayotte v Gervasio, 81 NY2d 1062, 1063 (1993); Finkelstein v Cornell University Medical College, 269 AD2d 114, 117 (1st Dept. 2000). The moving party must affirmatively demonstrate the merits of its claim or defense, and cannot obtain summary judgment merely by "pointing to gaps in its opponent's proof." Kajfasz v Wal-Mart Stores, Inc., 288 AD2d 902, 902 (4th Dept. 2001); Dodge v City of Hornell Industrial Development Agency, 286 AD2d 902, 903 (4th Dept. 2001); Frank v Price Chopper Operating Co., Inc., 275 AD2d 940 (4th Dept. 2000).

A party moving for summary judgment has the burden of submitting evidence, in admissible form, to support his motion. Zuckerman v City of New York, 49 NY2d 557, 562 (1980). Unsworn documents are inadmissible evidence and thus a party's reliance thereon in support of a motion for summary judgment is improper. See, Huntington Crescent Country Club v M & M Auto & Marine Upholstery, Inc., 256 AD2d 551, 551 (2nd Dept. 1998).

"In moving for summary judgment, the defendant [bears] the initial burden of establishing that it maintained its premises in a reasonably safe condition, had no actual or constructive knowledge of the [condition] and did not create the allegedly dangerous condition." Petrell v Victory Markets, Inc., 283 AD2d 955 (4th Dept. 2001); Grant v Radamar Meat, 294 AD2d 398, 398 (2nd Dept. 2002); Atkinson v Golub Corporation Company, 278 AD2d 905, 906 (4th Dept. 2000).

The moving party's failure to meet this burden of proof "requires denial of the motion, regardless of the sufficiency of the opposing papers", for the burden in that event never shifts to the opponent to demonstrate the existence of a material issue of fact. Winegrad v New York University Medical Center, supra, 64 NY2d at 853. The Second Department has repeatedly affirmed that the movant's failure in the first instance to demonstrate entitlement to the drastic relief of summary judgment mandates denial of the motion regardless of the sufficiency of the opposing papers. See, e.g., Miccoli v Kotz, 278 AD2d 460, 461 (2nd Dept. 2000); Karras v County of Westchester, 272 AD2d 377, 378 (2nd Dept. 2000); Fox v Kamal Corporation, 271 AD2d 485 (2nd Dept. 2000); Gstalder v State of New York, 240 AD2d 541, 542 (2nd Dept. 1997); Lamberta v Long Island Railroad, 51 AD2d 730, 730-731 (2nd Dept. 1976); Greenberg v Manlon Realty, Inc., 43 AD2d 968, 969 (2nd Dept. 1974).

A landowner's responsibility is to assure that the conditions on his property are [*5]reasonably safe. Basso v Miller, 40 NY2d 233, 241 (1976); Comeau v Wray, 241 AD2d 602, 603 (3rd Dept. 1997); White v Gabrielli, 272 AD2d 469, 469 (2nd Dept. 2000); Rovegno v Church of the Assumption, 268 AD2d 576, 576 (2nd Dept. 2000); Kurshals v Connetquot Central School District, 227 AD2d 593, 593 (2nd Dept. 1996). Specifically, the Basso Court stated that

[i]ndeed as the duty was so clearly stated in Smith v. Arbaugh's Rest. [152 U.S. App. D.C. 86, 469 F.2d 97, 100 [D.C. Cir. 1972]]: "A landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk". Application of the single rule in the instant case exemplifies its good sense, for the duty of keeping the roads of Ice Caves Mountain in repair should not vary with the status of the person who uses them but, rather, with the foreseeability of their use and the possibility of injury resulting therefrom.

Basso, 40 NY2d at 241; Kurshals, 227 AD2d at 593 (2nd Dept. 1996); Rovengno, 268 AD2d at 576 (2nd Dept. 2000).

As expressed in Cupo v Karfunkel, 1 AD3d 48 (2nd Dept. 2003), once a plaintiff presents evidence of a dangerous condition, the burden shifts to the landowner to demonstrate that he acted with reasonable care to make the property safe based upon the likelihood of injury to others and the burden of avoiding the risk. See, Id. at 52.

In Comeau, supra, a deliveryman sued the property owners after falling on stairs leading to a root cellar. Landowners are under a duty to maintain their premises in a reasonably safe condition in view of the circumstances, including the likelihood of injury to others. See, Id. at 603. This duty encompasses warning others of the danger, including obvious ones, or take reasonable steps to protect others from the dangers. See, Id. Moreover, where members of the public frequent a location, a landowner owes a "nondelegable duty to provide members of the general public with a reasonably safe premises, including a safe means of ingress and egress.' (Thomassen v. J & K Diner, 152 AD2d 421, 424, 549 N.Y.S.2d 416; see, Richardson v. Schwager Assoc., 249 AD2d 531, 531-532, 672 N.Y.S.2d 114).". Arabian v Benenson, 284 AD2d 422, 422 (2nd Dept. 2001); see, Reynolds v Sead Development Group, 257 AD2d 940, 940 (3rd Dept. 1999); June v Bill Zikakis Chevrolet, Inc., 199 AD2d 907, 909 (3rd Dept. 1993). This duty includes a duty to provide adequate lighting for such persons frequenting the locations. See, Tarrazi v 2025 Richmond Avenue Associates, Inc., 296 AD2d 542, 544 (2nd Dept. 2002); Shirman v New York City Transit Authority, 264 AD2d 832, 833 (2nd Dept. 1999); Gallagher v St. Raymond's Roman Catholic Church, 21 NY2d 554, 558 (1968). Plaintiff testified as to inadequate lighting which caused her not to see the board over which she tripped and fell. Defendants proffered no admissible evidence to contradict that assertion.

Where a property owner has a nondelegable duty to keep the premises safe, the duty may not be delegated to agents, employees or independent contractors. See, Backiel v Citibank, N.A., 299 AD2d 504 (2nd Dept. 2002). The property owner is in the best position to assume the risks associated with conditions existing on its property since it is consistent with the general responsibility of owners to maintain their premises in a reasonably safe condition under all circumstances. See Basso, 40 NY2d 233.

An out of possession landlord is liable for injuries which occur on the subject premises so [*6]long as it either retains control over the leased premises, it reserves the right to repair or maintain the property, or it retains control over the operation of the business conducted on the property (Emphasis suppled). See, Borelli v 1051 Realty Corp., 242 AD2d 517, 518 (2nd Dept. 1997); Pastor v R.A.K. Tennis Corp., 278 AD2d 395, 395 (2nd Dept. 2000); Gallo v Apollon City Corp., 278 AD2d 363, 363-364 (2nd Dept. 2000); Gordon v Foster Apartments Corp., 260 AD2d 540, 541, (2nd Dept. 1999); De Cristofaro v Joann Enterprises Inc., 243 AD2d 1015, 1017 (3rd Dept. 1997); Downey v R.W. Garraghan, Inc., 198 AD2d 570, 571 (3rd Dept. 1993); Young v J.M. Moran Properties, Inc., 259 AD2d 1037, 1038 (4th Dept. 1999); Mikolajczyk v M.C. Morgan Contractors, Inc., 273 AD2d 864, 865 (4th Dept. 2000); Henness v Lusins, 229 AD2d 873, 873-874 (3rd Dept. 1996). This axiom further extends to owners/lessors and lessees/sublessees. See, Baker v Getty Oil Co., 242 AD2d 644, 645 (2nd Dept. 1997). Specifically, the lease agreement requires OCAS's approval in construction of any buildings, and the lease only covers 1 acre of over a 90 acre parcel. OCAS oversaw the entirety of the Orange County Fair, provided security for the entire event and even contracted with an ambulance company to provide medical support for patrons. By retaining such control OCAS is not entitled to the protections given to out of possession landlords.

Furthermore, Cornell claims an absence of any actual or constructive notice of the condition. As the initial proponent of summary judgment, Cornell was obligated to demonstrate that it lacked actual or constructive notice of the precipitating condition or that it did not create the condition. See generally, Gordon v American Museum of Natural History, 67 NY2d 836 (1986); Gloria v MGM Emerald Enterprises, Inc., 298 AD2d 355 (2nd Dept.,2002); Van Steenburg v Great Atlantic & Pacific Tea Company Inc., supra, 235 AD2d 1001 (3rd Dept. 1997). See, Curzio v Tancredi, 8 AD3d 608 (2nd Dept. 2004); Petrell v Victory Markets, Inc., 283 AD2d 955 (4th Dept. 2001); Atkinson v Golub Corporation Company, 278 AD2d 905, 906 (4th Dept. 2000); Frank v Price Chopper Operating Co., Inc., supra, 275 AD2d 940 (4th Dept. 2000).

There is no evidence whatsoever that Cornell did not create the alleged defect. As such, summary judgment is denied on the issue of a condition created.

Cornell, as movant for summary judgment, had the initial burden of establishing the lack of actual or constructive notice. See, Lowe v Olympia & York Companies, 238 AD2d 317 (2nd Dept. 1997); Alvarez v Compass Retail, Inc., 237 AD2d 473 (2nd Dept. 1997); see also, Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982 (1993). There is no evidence that Cornell did not receive any complaints concerning the condition at issue. Cornell proffered no evidence of an absence of actual notice and therefore failed to make out a prima facie case on that issue.

Proof of lack of actual notice alone is insufficient. See, Reinemann v Stewart's Ice Cream Co., Inc., 238 AD2d 845 (3rd Dept. 1997). It was also incumbent on Cornell, as movant, to show lack of constructive notice, in that the condition which caused the accident was not visible or apparent for a sufficient length of time to permit defendant, in the exercise of reasonable care, to remedy the defect. See, Reinemann, supra; Cobrin v County of Monroe, 212 AD2d 1011 (4th Dept. 1995).

Defendant was obligated to demonstrate that they made reasonable efforts to inspect the subject premises in order to ascertain whether there were hazardous or defective conditions about which they would receive actual or constructive notice. See, Zuckerman v State of New York, 209 [*7]AD2d 510, 512 (2nd Dept. 1994).

As the Court stated in Haleemeh M.S. ex rel. Mohammad S.F. v MRMS Realty Corp., 28 Misc 3d 443 (Sup. Kings, 2010):

"Constructive notice" is described both as a legal inference and a duty of inquiry. "Constructive notice is a legal inference from established facts." ( Bierzynski v. New York Central R.R. Co. ., 31 AD2d 294, 297, 297 N.Y.S.2d 457 [4th Dept 1969], aff'd 29 NY2d 804 [1971] [ quoting Birdsall v. Russell, 29 NY 220, 248 (1864) ].) "Constructive notice ordinarily means that a person should be held to have knowledge of certain facts because he knows other facts from which it is concluded that he actually knew, or ought to have known, the fact in question." ( Id. [ quoting 42 NY Jur., Notice and Notices, § 3.)

"Constructive notice also exists whenever it is shown that reasonable diligence would have produced actual notice." ( Id.) "A person is chargeable with constructive notice of any fact which would have been disclosed by a reasonably diligent inquiry if circumstances are such as to indicate to a person of reasonable prudence and caution the necessity of making inquiry to ascertain the true facts and he or she avoids such inquiry." ( Majer v. Schmidt, 169 AD2d 501, 503, 564 N.Y.S.2d 722 [1st Dept 1991].) "One who has reasonable grounds for suspecting or inquiring ought to suspect, ought to inquire, and the law charges him with the knowledge which the proper inquiry would disclose." ( Fidelity & Deposit Co. v. Queens County Trust Co., 226 NY 225, 233 [1919].)

In Wynn v T.R.I.P. Redevelopment Associates, 296 AD3d 176, 181 (3rd Dept. 2002), the Court held that a "landlord is generally chargeable with notice of the dangerous conditions which a reasonable inspection would have discovered — the adequacy of the inspections usually being a question for the jury [cit. om.]."(emphasis supplied). It should also be noted that so long as "a defendant has a duty to conduct reasonable inspections of the premises, the issue of actual or constructive notice is irrelevant." (Emphasis supplied) Weller v Colleges of the Senecas, 217 AD2d 280, 285 (4th Dept. 1995); Watson v City of New York, 184 AD2d 690, 690 (2nd Dept. 1992). Moreover, defendant adduced no evidence whatsoever concerning a specific maintenance protocol for the subject premises. Cornell's witness specifically stated that he only engages in an initial inspection in April or May preceding the opening of the fair. The accident occurred in July. This glaring deficiency in the defendant's proof precludes a finding that the defendants lacked constructive notice as a matter of law and further that defendant even made out a prima face case for summary judgment. See, Mancini v Quality Markets, Inc., 256 AD2d 1177 (4th Dept. 1998); Edwards v Wal-Mart Stores Inc., 243 AD2d 803 (3rd Dept. 1997); Van Steenburg v Great Atlantic & Pacific Tea Company Inc., 235 AD2d 1001 (3rd Dept. 1997). In all of these cases,the defendants proffered testimony on this score and still failed to meet its initial burden of proof on the motion for summary judgment.

In Mancini, supra, the Court wrote:

Although plaintiff will bear the burden at trial of proving that defendant had actual or constructive notice of the dangerous condition, on a motion for summary judgment defendant bears the burden of establishing lack of notice as a matter of law [cit.om.]. The affidavit of the store manager and the deposition testimony of the front end manager are not sufficient to sustain defendant's burden. Neither was able to state when the area had last been inspected, or which [*8]employee was responsible for inspection or clean up in the produce area. Plaintiff's accident occurred after 9:30 p.m., and both witnesses indicated that the produce manager, who is responsible for the produce area, left at 5:00 p.m. at the latest. Although both witnesses indicated that the store had a policy of inspection of the entire store every hour, no documentation was provided to establish that the policy was followed on the day of plaintiff's accident, nor could either witness recall having performed such inspections. Consequently, defendant failed to establish that the grapes had not been on the floor for a sufficient length of time to permit an employee to discover and remedy the condition.

Id., 256 AD2d at 1177-78.

In Edwards, supra, where the plaintiff fell in a puddle of dirty water at around 8:30 p.m., the Court wrote:

In support of the motion [for summary judgment], defendant submitted the examination before trial of its comanager who testified that, although there was no set schedule, the "general practice" of the store was to inspect the area around the restrooms every half hour to an hour. However, in response to plaintiff's interrogatories, defendant admitted that it was unknown "what maintenance, inspection or cleaning was done in the area of the ladies' room" on the day of plaintiff's accident. The only pertinent evidence on this point was the testimony from a courtesy desk employee who stated that the last time she inspected the area that day was prior to 7:00 p.m., at which time she did not notice water on the floor.

In our view, this evidence was insufficient to meet defendant's burden of showing that it did not have constructive notice of the dangerous condition [cit.om.].

Id., 243 AD2d at 803.

Finally, in Van Steenburg, supra, the Court wrote:

[T]he store manager testified that there was no janitorial staff for the store; instead, all department heads and employees were instructed to clean during their idle time. Additionally, the store manager could not recall if a specific sweeping or mapping schedule was in place at the time of plaintiff's fall, nor was he able to state when the floor in the produce area was last cleaned prior to plaintiff's accident. Such proof falls far short of satisfying defendant's burden on its motion for summary judgment (compare, McClarren v. Price Chopper Supermarkets, 226 AD2d 982...[proof establishing that the aisle where the plaintiff fell was inspected 3 to 5 minutes prior to the accident and found to be clean and dry]; Maiorano v. Price Chopper Operating Co., 221 AD2d 698, 699...[record demonstrated that the area in which the plaintiff fell had been swept 5 to 10 minutes prior to accident]). Thus,...the sufficiency of plaintiff's proof in opposition need not detain us, as defendant failed to meet its evidentiary burden in the first instance...

Id., 235 AD2d at 1001.

Conspicuously absent from defendant's moving papers is any admissible evidence to the absence of defendant's constructive notice.

It should also be noted that so long as "a defendant has a duty to conduct reasonable inspections of the premises, the issue of actual or constructive notice is irrelevant." (Emphasis [*9]supplied) Weller v. Colleges of the Senecas, 217 AD2d 280, 285, 635 N.Y.S.2d 990, 994 (4th Dept. 1995); Watson v. City of New York, 184 AD2d 690, 690, 585 N.Y.S.2d 100, 101 (2nd Dept. 1992).

Moreover, where members of the public frequent a location, a landowner owes a "nondelegable duty to provide members of the general public with a reasonably safe premises, including a safe means of ingress and egress.' (Thomassen v. J & K Diner, 152 AD2d 421, 424, 549 N.Y.S.2d 416; see, Richardson v. Schwager Assoc., 249 AD2d 531, 531-532, 672 N.Y.S.2d 114).". Arabian v Benenson, 284 AD2d 422, 422 (2nd Dept. 2001); see, Reynolds v Sead Development Group, 257 AD2d 940, 940 (3rd Dept. 1999); June v Bill Zikakis Chevrolet, Inc., 199 AD2d 907, 909 (3rd Dept. 1993). Where a property owner has a nondelegable duty to keep the premises safe, the duty may not be delegated to agents, employees or independent contractors. See, Backiel v Citibank, N.A., 299 AD2d 504 (2nd Dept. 2002). The property owner is in the best position to assume the risks associated with conditions existing on its property since it is consistent with the general responsibility of owners to maintain their premises in a reasonably safe condition under all circumstances. See Basso, 40 NY2d 233. This obligation owed to the general public encompasses all persons who come upon the premises. See, Backeil, 299 AD2d at 507. In the instant case, the accident occurred in a building specifically open to the public. As such, defendants owed a non-delegable duty to people such as plaintiff to properly maintain the subject premises. Given the submissions, questions of fact remain as to whether the defendants fulfilled such an obligation, and such questions must be resolved by a jury, not the Court.

Cornell further asserts that the condition about which plaintiff complains was open and obvious and not inherently dangerous and therefore absolved defendants from any responsibilities to plaintiff. The defendant in Zimkind v Costco Wholesale Corp., 12 AD3d 593 (2nd Dept. 2004) submitted photographic evidence of the subject condition and affirmatively demonstrated that it was not inherently dangerous. The plaintiff in that case tripped over a concrete wheel stop in the defendant's parking lot. The Court held that based upon the evidence submitted, there was considerable proof that the condition itself was not inherently dangerous and it was open and obvious as well. As such, the defendant owed no duty to that particular plaintiff. In this case, as in Zimkind, the Court is obligated to search defendants' motions to ascertain whether it demonstrated affirmatively that the condition was both open and obvious under the circumstances, and if so, further demonstrate that it was not inherently dangerous. In the instant case, defendants did neither thing. Defendant's counsel's affirmation that the condition was open and obvious proved nothing See, Salas v Town of Lake Luzerne, 265 AD2d 770, 770 (3rd Dept. 1999); see also, Wright v Rite-Aid of NY, Inc., 249 AD2d 931, 932 (4th Dept. 1998); Hodgson, Russ, Andrews, Woods & Goodyear v Roth, 186 AD2d 1001, 1002 (4th Dept.1992). In brief, the motion must be supported by an affidavit of a person having knowledge of the facts, together with a copy of the pleadings and other available proof." S.J. Capelin Associates, Inc. v Globe Manufacturing Corp., 34 NY2d 338, 341 (1974). None of the testimony specifically demonstrated either that the condition at issue was an open and obvious one, and that even if open and obvious, that it was not inherently dangerous. Therefore defendant defaulted upon its obligation to affirmatively demonstrate its prima facie case.

Whether or not the condition itself was open and obvious, that does not absolve the defendants from their duty to reasonably maintain the premises. As expressed in Cupo v [*10]Karfunkel, 1 AD3d 48 (2nd Dept. 2003), once a plaintiff presents evidence of a dangerous condition, the burden shifts to the landowner to demonstrate that he acted with reasonable care to make the property safe based upon the likelihood of injury to others and the burden of avoiding the risk. See, Id. at 52. Whether a condition is open and obvious has nothing to do with this duty. The duty is not abrogated by the characterization of the hazard as open and obvious since by doing so leads to the ridiculous result of encouraging landowners to make hazards on their properties as dangerous as possible to avoid liability if someone is injured as a result of that hazard. See, Id. In Stern v Ofori-Okai, 246 AD2d 807, 808 (3rd Dept. 1998), the Court held that even awareness of a hazardous condition does not absolve a landowner from liability in maintaining its premises, but is relevant only on the issue of comparative negligence. In Morgan v Genrich, 239 AD2d 919 (4th Dept. 1997), the Court held that the fact that a hazard is readily observable "may be relevant on the issue of plaintiff's comparative negligence, but it does not negate the duty of the defendants to keep their premises reasonably safe." Id. at 920; see, Chambers v Maury Povich Show, 285 AD2d 440, 440 (2nd Dept. 2001); Acevedo v Camac, 293 AD2d 430, 431 (2nd Dept., 2002); Tuttle v Anne LeConey, Inc., 258 AD2d 334, 335 (1st Dept. 1999); Crawford v Marcello, 247 AD2d 907, 907 (4th Dept. 1998); Tenebruso v Toys "R" Us — Nytex, Inc., 256 AD2d 1236, 1237 (4th Dept. 1998); Vereerstraeten v Cook, 266 AD2d 901, 901 (4th Dept. 1999); Orellana v Merola Associates, Inc., 287 AD2d 412, 413 (1st Dept. 2001).

As the First Department expressed in Westbrook v WR Activities-Cabrera Markets, 5 AD3d 69 (1st Dept. 2004), the issue of whether a condition is open and obvious is generally a jury question and should only be resolved as a matter of law when the facts compel such a conclusion. See, Id. at 72. For a condition to be open and obvious as a matter of law requires that it could not be overlooked by anyone making a reasonable uses of his senses. See, Garrido v City of New York, 9 AD3d 267, 268 (1st Dept. 2004).

Furthermore, the extent to which a defect is open and obvious addresses the issue of plaintiff's comparative negligence, not the defendant's overall duty to maintain its premises in a reasonably safe condition. See, Acevedo, 293 AD2d at 431.

An example given by the Westbrook Court included a case (Thornhill v Toys "R" Us NYTEX, 183 AD2d 1071) where summary judgment was denied to a defendant when a plaintiff tripped over a raised platform in a department store, despite the fact that the plaintiff initially noticed the platform and avoided it, given that the photographs demonstrated that the platform itself was not readily discernible.

In Juoniene v HRH Construction Corp., 6 AD3d 199 (1st Dept. 2004), the Court found that plaintiff's striking her head on a standpipe which extended horizontally from a building was not an open and obvious hazard since the sun glare prevented her from seeing the object, since some hazards due to their nature of location, are likely to be overlooked. See, Id. at 200-201.

In Garrido, supra, plaintiff tripped over a broken and fallen construction sign which was on the sidewalk. The sign was 6' long and 4' high lying on the ground. The Court reversed the trial court's decision to grant summary judgment noting that while the sign itself was clearly visible, the plaintiff's failure to observe it was relevant only to the issue of plaintiff's comparative negligence, and not the defendant's overall duty to reasonably maintain the sidewalk. See, Garrido, 9 AD3d at 268.

In Moloney v Wal-Mart Stores, Inc., 2 AD3d 508 (2nd Dept. 2003), plaintiff was injured [*11]when she tripped over a wooden pallet placed by defendant on the floor between two tables displaying merchandise. The Court held, in reversing the lower court's decision to grant defendant a judgment on the law at the close of plaintiff's case, even if a jury found the pallet to have been open and obvious, it was relevant only to comparative negligence and a rational jury may not completely absolve the defendant from liability. See, Id. at 508. In the instant case, the issue of whether the stacked box was open and obvious is a jury question, and even an affirmative determination that it was open and obvious (a question which this court does not reach) does not absolve defendant from liability.

In Monge v Home Depot, Inc., 307 AD2d 501 (3rd Dept. 2003), plaintiff attempted to maneuver around a plant display placed by defendant, and in so doing, her shopping cart's wheel went off the curb and caused her to fall and be injured. The Court held that defendant created the condition by placing and arranging the plant display and the issue of whether the perils of the aisle were open and obvious was best left for jury determination. See, Id. at 502; See also, De Conno v Golub Corp., 255 AD2d 734, 735 (3rd Dept. 1998) (plaintiff, who tripped on a cone placed by defendant in an aisle of one of its stores, was entitled to a jury trial and denial of summary judgment by defendants since the placement of the cone and its obscuring by customers and other merchandise stacked nearby, created an issue of fact).

Moreover, even if the condition was open and obvious, the question remains whether it was inherently dangerous and whether plaintiff bears any responsibility for the accident's occurrence. NYC.P.L.R. §1411 states as follows:

In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.

In New York, it is well settled that the issue of comparative negligence is a question of fact proper for the jury's determination. Louise B.G. v New York City Bd. of Educ., 143 AD2d 728, 730 (2nd Dept. 1988) (citing Willis v. Young Men's Christian Ass'n of Amsterdam, 28 NY2d 375, 270 NE2d 717, 321 NYS2d 895 (1971)). A determination of whether plaintiff is contributorily negligent is almost invariably question of fact, and is for jury to determine in all but clearest cases. See, Williams v City of New York, 101 AD2d 835, 836 (2nd Dept. 1984); See, also, Weber v City of New York, 101 AD2d 757, 757 (1st Dept. 1984), affirmed 63 NY2d 886 (1984); Snyder v Moore, 72 AD2d 580, 581 (2nd Dept. 1979).

According to Alexander, Practice Commentaries (7B McKinney's Cons Laws of NY, CPLR C1411:1 (1997)), "Under the statute, in any action to recover damages for personal injury, injury to property or wrongful death, the culpable conduct of the plaintiff (or decedent) generally does not bar recovery; rather, such conduct diminishes plaintiff's recovery in proportion to the culpable conduct of the defendants. CPLR 1411 adopts a rule of pure comparative fault, so that in theory a plaintiff who is 99% responsible for his own injuries may still recover 1% of his damages."

In negligence actions, New York has abandoned contributory negligence and assumption of risk for a form of comparative negligence, the purpose of which is to ameliorate the harsh [*12]results when a plaintiff is slightly negligent and fairly to apportion damages among the parties. Knieriemen v Bache Halsey Stuart Shields Inc., 74 AD2d 290, 295 (1st Dept. 1980), appeal dismissed 50 NY2d 1021 (1980), appeal dismissed 51 NY2d 970 (1980)

According to Alexander, Practice Commentaries (7B McKinney's Cons Laws of NY, CPLR C1411:1 (1997)), there are only four primary situations

. . . in which the plaintiff's culpable conduct will completely bar recovery against the defendant. First, plaintiff's conduct may be the sole cause of the injuries. See, e.g., Howard v. Poseidon Pools, Inc., 1988, 72 NY2d 972, 534 N.Y.S.2d 360, 530 N.E.2d 1280 (experienced swimmer's diving head first into shallow, above-ground pool was sole proximate cause of injury; defendant manufacturer's failure to warn of danger was irrelevant).

Second, no recovery whatsoever is available to a plaintiff "whose injuries are the direct result of his commission of ... serious criminal or illegal conduct." Barker v. Kallash, 1984, 63 NY2d 19, 26, 479 N.Y.S.2d 201, 204, 468 N.E.2d 39, 42 (plaintiff injured by explosion while constructing pipe bomb). See also La Page v. Smith, 1990, 166 AD2d 831, 563 N.Y.S.2d 174 (3d Dep't), appeal denied 78 NY2d 855, 573 N.Y.S.2d 645, 578 N.E.2d 443 (intoxicated plaintiff injured while participating in illegal auto race at speeds in excess of 100 m.p.h.). This principle is based on the public policy that denies judicial relief to persons injured in the course of serious criminal activity, and it exists independently of, and supersedes, the doctrine of comparative fault.

Third, an "express" assumption of risk by the plaintiff precludes any recovery. Arbegast v. Board of Education of South New Berlin Central School, 1985, 65 NY2d 161, 490 N.Y.S.2d 751, 480 N.E.2d 365. A plaintiff "expressly" assumes the risk of her injuries when she agrees, in advance, that the defendant "need not use reasonable care for the benefit of plaintiff." Id. at 169, 490 N.Y.S.2d at 757, 480 N.E.2d at 371. In effect, the plaintiff's express consent to the risks involved in the activity eliminates the defendant's duty of care. Id. at 170, 490 N.Y.S.2d at 757, 480 N.E.2d at 372. In Arbegast, express assumption of risk was found where the plaintiff participated in a fund-raising basketball game in which the players rode on the backs of donkeys after having been informed beforehand that they participated at their own risk.

Fourth, and closely related to express assumption of risk, is "primary" assumption of risk. Turcotte v. Fell, 1986, 68 NY2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964. This doctrine has most often been invoked in connection with voluntary participation in competitive athletics professional, amateur, interscholastic and even informal. See, e.g., Strauss v. Town of Oyster Bay, 1994, 201 AD2d 553, 607 N.Y.S.2d 730 (2d Dep't) (Little League baseball); Sutfin v. Scheuer, 1988, 145 AD2d 946, 536 N.Y.S.2d 320 (4th Dep't), affirmed 74 NY2d 697, 543 N.Y.S.2d 379, 541 N.E.2d 408 (game of catch). By electing to participate, the plaintiff is deemed to have consented "to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation." Turcotte v. Fell, supra, 68 NY2d at 439, 510 N.Y.S.2d at 53, 502 N.E.2d at 968. Such "primary" assumption of risk eliminates the defendant's [*13]duty of care to the plaintiff, thus rendering the concept of comparative fault irrelevant and completely barring any recovery against the defendant. Id. at 437-39, 510 N.Y.S.2d at 52-53, 502 N.E.2d at 967- 68. "The policy underlying this tort rule is intended to facilitate free and vigorous participation in athletic activities." Benitez v. New York City Board of Education, 1989, 73 NY2d 650, 657, 543 N.Y.S.2d 29, 33, 541 N.E.2d 29, 33.

The doctrine of primary assumption of risk, of course, has certain qualifications. Participants do not consent to reckless or intentional acts, nor do they assume risks that are concealed or "unreasonably increased" beyond those normally associated with the activity. Id. at 657- 58, 543 N.Y.S.2d at 33, 541 N.E.2d at 33. "The applicability of the doctrine depends on the nature and scope of the participant's awareness and consent.... Whether it can be concluded that a plaintiff made an informed estimate of the risks involved in an activity before deciding to participate depends on the openness and obviousness of the risk, plaintiff's background, skill and experience, plaintiff's own conduct under the circumstances and the nature of defendant's conduct.... Perhaps the most important factor ... is whether the risk is inherent in the activity." Lamey v. Foley, 1993, 188 AD2d 157, 163-64, 594 N.Y.S.2d 490, 495 (4th Dep't).

In Patterson v Troyer Potato Products, Inc., 273 AD2d 865 (3rd Dept. 2000), plaintiff tripped and fell when her lower right leg struck a shelf protruding into an aisle of defendant Food Mart as she was passing an employee of defendant food supplier who was stocking merchandise on the store's shelves. Defendants moved for summary judgment, and the trial court denied the motion as to both defendants. The Court affirmed regarding defendant Food Mart but modified as to defendant Troyer. Food Mart had asserted that the condition was open and obvious, but the Court found that the shelf that had allegedly caused plaintiff to trip was near floor-level and protruded only three to four inches. Both plaintiff and defendants' employees also stated that they did not see what plaintiff had tripped on. The Court said even if the shelf was readily observable, such a fact would go to the issue of comparative negligence and would not negate the duty of defendants to keep their premises reasonably safe. Summary judgment as to these defendants was thus improper.

In Tirella v American Properties Team, Inc., 145 AD2d 724 (3rd Dept. 1988), plaintiff attempted to take her first bath in an apartment. She turned on the bath water without first checking the water temperature and left the room until the tub was filled. Plaintiff returned to the tub and placed her feet in the water without first testing the water temperature. The water was extremely hot and she sustained second and third degree burns. The defendants moved for summary judgment. The trial court denied defendants' motions and the Third Department affirmed. In so holding, the Third Department stated that plaintiff's culpable conduct in failing to test the water prior to placing her feet in the tub was not a superceding intervening cause of the accident sufficient to negate the defendants' duty of care and bar recovery by plaintiff as a matter of law. Id. at 725. The Court considered plaintiff's failure to check the water temperature before immersing her feet a normal and reasonably foreseeable consequence of the situation created by defendants' negligence in permitting the water to become too hot. Id. Moreover, any failure by plaintiff may be considered by the jury on the issue of comparative negligence and plaintiff's [*14]conduct does not break the causal nexus chain. Id.

Nothing submitted herewith demonstrates that plaintiff was the sole proximate cause of her accident and therefore it is a question of fact for the jury to resolve. Given the absence of defendant's prima facie case for summary judgment, the burden never shifted to the plaintiff to demonstrate the existence of a triable issue of fact.

Cornell then asserts that the defect alleged was trivial in nature. "[W]hether a dangerous or defective condition exists on the property of another so as to create liability "depends on the peculiar facts and circumstances of each case" and is generally a question of fact for the jury' [citation omitted]." Trincere v County of Suffolk, 90 NY2d 976, 977 (1997); Argenio v Metropolitan Transportation Authority, 277 AD2d 165, 166 (1st Dept. 2000); Nin v Bernard, 257 AD2d 417 (1st Dept. 1999); Walters v County of Rensselaer, 282 AD2d 944 (3rd Dept. 2001); Adsmond v City of Poughkeepsie, 283 AD2d 598 (2nd Dept. 2001); Tesak v Marine Midland Bank, N.A., 254 AD2d 717, 718 (4th Dept. 1998).

The evidence submitted demonstrates the kickplate at issue was at least 2-4 inches above the floor. Cornell submits no admissible evidence that it did not constituted a trap or snare. See, Trionfero v Vanderhorn, 6 AD3d 903 (3rd Dept. 2004).

"The precise dimensions of the defect, be they in feet or inches, are not dispositive [Trincere, supra] at 977-978, 665 N.Y.S.2d 615, 688 N.E.2d 489 ) . . . [A] motion court must examine all the facts presented including the width, depth elevation, irregularity and appearance of the defect along with the "time place and circumstance" of the injury." [citations omitted]." Nin, 257 AD2dat 417. The Nin Court further concluded that an uneven platform created by the depression and its location at the top step of a stairwell created a question of fact for jury consideration whether the depression constituted a dangerous or defective condition. Id. at 418.

In Pagano v Rite-Aid Corp., 266 AD2d 854, 854-855 (4th Dept. 1999), the Court stated that "[e]ven a small difference in height is actionable if the alleged defect has the characteristics of a trap, snare or nuisance [citation omitted]." Moreover, as the Court held in Slate v Fredonia Central School District, 256 AD2d 1210, 1210 (4th Dept. 1998), "[a]lthough slight differences in elevation have been held to be nonactionable (see, Morales v. Riverbay Corp., 226 AD2d 271, 641 N.Y.S.2d 276 [1st Dept. 1996]; see also, Julian v. Sementelli, 234 AD2d 866, 651 N.Y.S.2d 678 [3rd Dept. 1996]; Guerrieri v. Summa, 193 AD2d 647, 598 N.Y.S.2d 4 [2nd Dept. 1993]), the same cases hold that even a trivial height differential may be actionable where the defect constitutes a trap, snare, or nuisance."

In Argenio, 277 AD2d at 166, the First Department held that "[t]here is no per se rule with respect to the dimensions of a defect that will give rise to liability on the part of a landowner or other party in control of premises [citations omitted], and even a trivial defect may constitute a snare or trap." Furthermore, "the presence of an edge with poses a tripping hazard renders the defect nontrivial." The Argenio Court further held that even a defect as small as ¼" deep is a sufficient size to trap a plaintiff. See, Id. In the instant case, the defect in question was at least 2 inches high.

In denying summary judgment, the Argenio Court held that "The location of the depression in a heavily traveled pedestrian walkway renders observation of the defect less likely [*15][citations omitted]." Argenio, 277 AD2d at 166. In this case, the alleged defect bordered the pedestrian walkway. That coupled with the discrepancy in lighting conditions as advanced by the parties warrants denial of summary judgment. Although the minimal nature of an alleged height differential on a walkway is not in and of itself determinative, "in some instances, the trivial nature of the defect may loom larger than another element" ( Trincere v. County of Suffolk, supra at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489). "Not every injury allegedly caused by an elevated brick or slab need be submitted to a jury" ( id. at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [citation omitted] ).Indeed, it is well established that " [t]he owner of a public passageway may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his [or her] toes, or trip over a raised projection'*904 " ( Guerrieri v. Summa, 193 AD2d 647, 647, 598 N.Y.S.2d 4 [1993], quoting Liebl v. Metropolitan Jockey Club, 10 AD2d 1006, 1006, 204 N.Y.S.2d 670 [1960] ). According to plaintiff's deposition testimony, she was walking on the sidewalk when the toe of her sneaker came in contact with the edge of a concrete sidewalk slab, causing her to trip. The record evidence establishes that the slab in question was raised only a trivial amount above the adjacent slab-somewhere between 5/8 and 7/8 of an inch. Thus, it was plaintiffs' burden to " raise a triable issue of fact whether the alleged defect has the characteristics of a trap, snare or nuisance' " ( Leverton v. Peters Groceries, 267 AD2d 1014, 1015, 700 N.Y.S.2d 316 [1999], quoting Gigliotti v. St. Stanislaus Kostka R.C. Church, 261 AD2d 951, 952, 689 N.Y.S.2d 806 [1999] ).

Trionfero, 6 AD3d at 903-904. There is nothing to indicate in any case law that a defect exceeding 2 inches in height is trivial as a matter of law. Defendant failed to make out a prima facie case of a trivial defect and therefore its motion must be denied as a matter of law.

The sufficiency of plaintiff's opposition is unavailing since the defendants failed to meet their burden of demonstrating the absence thereof. Therefore Cornell's motion is denied in its entirety.

The foregoing constitutes the decision and order of this Court.

Dated: September 27, 2012E N T E R

Goshen, New York

__________________________

HON. CATHERINE M. BARTLETT,

A.J.S.C.