Bonesteel v Saint Vincent's Hosp. Manhattan

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Bonesteel v Saint Vincent's Hosp. Manhattan 2013 NY Slip Op 30105(U) January 18, 2013 Supreme Court, New York County Docket Number: 114082/2008 Judge: Saliann Scarpulla 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 OF THE STATE OF NEW YORK NEW YORK COUNTY @ e , . L m -- PART *- L Justice - Index Number 114082/2008 BONESTEEL, CHRISTINE vs . SAINT VINCENT'S HOSPITAL SEQUENCE NUMBER : 004 ' INDEX NO. MOTION DATE MOTION SEQ. NO, SUMMARY JUDGMENT The following papers, numbered I to , were read on this motion tolfor Notice of MotionlOrder to Show Cause -Affidavits Answering Affidavits - Exhibits !q - Exhibits IN W . INd8). I Ws). Reptying Affidavits Upon the foregoing papers, it is ordered that this motion is I @OUN"W CLERK'S OFFICE Dated: &b-- ,J.S.C. ..................................................................... CASE DISPOSED BNON-FINAL DISPOSITION /J GRANTED INPART OTHER @DENIED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: ~1GRANTED aSUBMIT ORDER 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT REFERENCE I CHECK ONE: . [* 2] Plaintiff, Index No.: 114082/08 Submission Date: 10/24/12 - against SAINT VINCENT S HOSPITAL MANHATTAN, DECISION AND ORDER Defendant. r___l___r__-______l___l__l___r_____l___1--- ----------~------- - For Plaintiff Acre Law Office, PLLC 3 144 East Tremont Avenue Bronx, NY 10461 X For Defendant: Shaub, Ahmuty, Citrin & Spratt, LLP 77 Water Street New York, NY 10005 Papers considered in review of this motion for summary: Notice of Motion . . . . . . . 1 Aff in Support. . . . . . . . . 2 Aff in Opp . . . . . . . . . . . . 3 Reply Aff . . . . . . . . . . . . . 4 HON. SALIANN SCAWULLA, J.: In this action to recover damages for personal injuries, defendant St. Vincent s Catholic medical Centers, s/h/a Saint Vincent s Hospital Manhattan ( St. Vincent s or defendant ) moves for summary judgment pursuant to CPLR 3212 dismissing the complaint against it. St. Vincent s originally moved for summary judgement in January 2010. On April 14,2010, St. Vincent s filed petitions for relief under Chapter 11 of the U.S. Bankruptcy Code, staying all proceedings in this matter. By order dated June 29,2010, this Court marked this motion off the calender without prejudice to resubinit in the event that the bankruptcy stay was lifted or the bankruptcy proceeding dismissed. The stay was modified on February 8, 2012, permitting adjudication of this action, limited to the proceeds of St. Vincent s third-party insurance coverage. St. Vincent s then renewed its 1 ..... . . - . - [* 3] This action arises from injuries sustained by plaintiff Christine Bonesteel ( Bonesteel ) on May 4, 2008. Bonesteel alleges that she slipped and fell on that date in water on the floor of St. Vincent s hospital. Bonesteel testified at her deposition that she was walking in the corridor on the second floor of St. Vincent s, adjacent to the chapel, heading toward a 12:05 mass, when she slipped in water, causing her legs to go out from under her, landing on her back and sustaining injuries, Bonesteel also testified that she didn t see any moisture in the hallway, but was walking normally and not looking at the ground as she approached the chapel. Bonesteel further testified that when she was laying on the floor waiting for help, she was wet, as were her jacket and pants, She testified that she lay in a pool of water and was soaking wet. Immediately after falling, Bonesteel called for help, and Father James Robert O Connell ( Father O Connell ) came out to assist her. Bonesteel testified that upon seeing her on the ground, Father O Connell remarked that he has called about the leak at 9:OO or 9:30 that morning, and that he was upset that it appeared that no one came to fix the leak, resulting in Bonesteel s fall. At his deposition, Father O Connell, a chaplain at St. Vincent s testifying ion its I behalf, stated that he heard Bonesteel calling for help, and then found her on her back in motion for summary, and in an order dated May 30, 2012 this court granted St. Vincent s motion as unopposed. However, the parties entered into a Stipulation to Vacate Judgment dated July 17, 2012, and the action was restored to the calendar and resubmitted. I L. 2 . . [* 4] the hallway. He further testified that there was a large area of clear water around the area where Bonesteel fell. Father O Connell testified that he recalled seeing water in that location earlier that day, and that he reported it to a hospital worker - a woman who was wearing an environmental - a nurse - some kind of nurse s aide outfit - he saw outside the CAT scan lab at around 9:OOa.m. Father O Connell stated that when he first saw the pool of water in the hallway is was approximately five ( 5 ) feet long and two (2) feet wide, in the same location where he later found Bonesteel. Father O Connell also testified that between the time he reported the water on the floor and the time he saw Bonesteel, he had been through that area again, and there was no water visible. In her summons and verified complaint, Bonesteel allege that her injuries resulted from St. Vincent s negligent maintenance of the hallway, that St. Vincent s has created the unsafe condition, and that he condition existed long enough that St. Vincent s knew or should have known of the sidewalk premises. In its answer, St. Vincent s denies all material allegations. St. Vincent s now moves for suinznary judgment pursuant to CPLR 3212 dismissing the complaint. St. Vincent s argues that it is not liable for Bonesteel s injuries because it did not have actual or constructive notice of the alleged dangerous condition. In opposition, Bonesteel argues that there is prima facie evidence that the condition existed for a period of time sufficient to constitute constructive notice, that St. Vincent s fails to establish that it maintained the property in a reasonabIe safe condition, did not cause or cerate the dangerous condition, and that there are material issue of fact to preclude an award of summary judgement for St. Vincent s. 3 .. . . . . ... _ . _ [* 5] Discussion A movant seeking summary judgment must make aprima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any Med. Ctr., 64 N.Y.2d 85 1, 853 material issues of fact. Winegrad v. New York Univ. (1985). Once a showing has been made, the burden shifts to the opposing party who must then demonstrate the existence of a triabIe issue of fact. Alvarez v. Prospect Huxp., 68 N.Y.2d 320,324 (1986); Zuckerman v. City o New York, 49 N.Y.2d 557 (1980). On a f summary judgment motion, the court must accept the testimony of the nonmoving party iy f as true. 0 Sullivan v. Presbyterian Hosp. in Ct o New York at Columbia Presbyterian Med. Ctr., 217 A.D.2d 98, 101 (1st Dep t 1995). In general, a defendant in a trip-and-fall action must have notice of the defect to be liable for injuries resulting fiom the defect. See Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (1986). TOprevail on a motion for summary judgment for lack of notice, defendants [are] required to make a prima facie showing which affirmatively establishe[s] the absence of notice as a matter of law. Spitzer v. Bronx Park East Corps., 284 A.D.2d 177 ( lSt Dep t 200 1) (citing Fox v. Kamal Carp, 27 1 A.D.2d 485 (2d Dep t 2000). Here, St. Vincent s has failed affirmatively to establish the absence of notice as a matter of law. As the movants, [it] bear[s] the burden of disproving an essential element of plaintiffl s] claims and cannot affirmatively establish[] the absence of notice as a matter of law . . merely by pointing out gaps in the plaintiffs case. Dabbagh v. I 4 [* 6] NewmarkKnight Frank Global Mgmt. Svs., LLC, 99 A.D.3d 448,450 ( lStDep t 2012) (quoting Martinez v. Khaimov, 74 A.D.3d 103 1, 1033 (2d Dep t 2010)). Father O Connell s testimony regarding notifying a woman in the hallway about the leak and the water on the floor raises a question of fact as to actual notice. If this person was employed as one responsible for cleaning and or maintaining the hallway, or reported the leak to someone who was, St. Vincent s could be found to have actual notice. Further, there is a question of fact regarding whether St, Vincent s had constructive notice. Constructive notice requires proof that a defect was visible and apparent and that it existed for a sufficient length of time before the accident to permit the defendant s employees to discover and remedy it. Fox, 271 A.D.2d at 485. Father O Connell testified that he first noticed the pool of water and reported it around 9:OO in the morning, and later saw the floor was dry. However, he also testified that when he found Bonesteel laying on the floor, she was in fact laying in a large pool of water in the sarne location where he had observed a large pool of water approximately three (3) hours earlier. There are question of fact, therefore, regarding the source of the water on the hallway floor, whether it came from a leak or building defect which was not remedied, which may have been cleaned and then occurred again due to some sort leaking condition. Finally, Bonesteel s deposition testimony, that the floor was wet causing her to slip and fall, is evidence sufficient to raise a factual question as to whether St. Vincent s knew or should have known the existence of a hazardous condition, Bonesteel s testimony constitutes evidence from someone with personal knowledge of the facts and, whether or 5 I [* 7] not it is regarded as self-serving, it is sufficient to present an issue for trial. Plaintiff identified the wet and slippery floor as the reason for [her] fall; thus, [her] testimony cannot be dismissed as inere speculation regarding causation. Signorelli v. The Great Atluniic &Pacific Tea Co., Inc., 70 A.D.3d 439,439-440 (1 Dep t 2010). Accordingly, St. Vincent s motion for summary judgment is denied. In accordance with the foregoing, it is hereby ORDERED that the motion for summary judgment by defendant St. Vincent s Catholic medical Centers, s/h/a Saint Vincent s Hospital Manhattan is denied. This constitutes the decision and order of the Court. Dated: New York, New York January\ $,20 13 JAN 23 2013 ENTER: NEW YORK COUNTY CLERK S OFFICE 6 I

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