Salatino v Angela's Pizza of Catskill, Inc.
Annotate this CaseDecided on September 2, 2015
Supreme Court, Ulster County
Linda Salatino, Plaintiff,
against
Angela's Pizza of Catskill, Inc. and Artemio and Flor Santiago d/b/a LaRoma Pizzeria & Restaurant, Defendants.
12-0110
Steven M. Melley, Esq.
Counsel for Plaintiff
Melley Platania, P.C.
24 Closs Drive
Rhinebeck, New York 12572
Kimberly Hunt Lee, Esq.
Counsel for Defendants
McCabe & Mack, LLP
63 Washington Street
P.O. Box 509
Poughkeepsie, New York 12602-0509
Lisa M. Fisher, J.
Plaintiff Linda Salatino brought this premises liability action against Defendant restaurant [FN1] alleging that Defendant was negligent in causing her trip and fall accident on a single [*2]step in the ladies' restroom on November 26, 2010, which resulted in personal injury. Defendant moves for summary judgment, which is opposed by Plaintiff. Both parties submit the affidavit of a professional engineer. For the reasons that follow, the Court finds Defendant has failed to establish prima facie entitlement to summary judgment. Notwithstanding, Plaintiff has raised numerous questions of fact precluding summary judgment.
The facts are generally uncontroverted. Plaintiff arrived at the restaurant and ordered her meal. She then proceeded to the restroom to wash her hands prior to eating. There is a sign outside the ladies' restroom that says "Watch Your Step in the Ladies' Room." After entering the ladies' restroom, there was a short hallway leading down to the sink and toilet area. Towards the end of the short hallway was a single step. There was no handrail. The riser of the step was of the same patterned tile as the ground before and after the step. There was a narrow band of white tile across the leading edge of the step. On the wall in front of the step was a red "Watch Your Step" sign which was approximately eight inches by two inches. As Plaintiff traveled down the short hallway (about four to five steps), she testified that she did not see the single step and felt the tip or toe area of her right foot hit a wall—the step's riser—which caused her to fall forward injuring herself.
The restaurant was owned by Artemio and Flor Santiago; they purchased it in 2001. Around the year 2004, Artemio and his uncle replaced the floor tiles in the ladies' restroom because the tiles were "coming up" and "loosening up." They replaced the tile on and around the step too, but they did not otherwise modify or change the step except for the tiles. They did not get a permit to complete the building work.
It has been well established that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. (Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012]; Sternbach v Cornell Univ., 162 AD2d 922, 923 [3d Dept 1990].) The Court of Appeals has stated that "[n]eglience cases by their very nature do not usually lend themselves to summary judgment, since often . . . the very question of negligence is itself a question for jury determination." (Ugarriza v Schmieder, 46 NY2d 471, 474 [1979].)
To establish a prima facie entitlement to judgment as a matter of law, a moving party must present proof in admissible form to demonstrate the absence of any triable issues of fact as to each and every allegation in the complaint and bill of particulars. (See Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]; accord Hollis v Charlew Const. Co., Inc., 302 AD2d 700 [3d Dept 2003]; Balnys v Town of New Baltimore, 160 AD2d 1136, 1136 [3d Dept 1990] [noting the movant must come "forward with competent proof refusing the allegations of the complaint as amplified by the bill of particulars."].) Such "burden may not be met by pointing to gaps in plaintiff's proof." (DiBartolomeo v St. Peter's Hosp. of City of Albany, 73 AD3d 1326 [3d Dept 2010]; accord Dow v Schenectady County Dept. of Social Servs., 46 AD3d 1084, 1084 [3d Dept 2007].)
Thus, "[a] defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing 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." (McMullin v Martin's Food of S. Burlington, Inc., 122 AD3d 1103, 1104 [3d Dept 2014].) To place a defendant on constructive notice, the dangerous condition must have existed for a sufficient length of time before the accident as to allow defendant to discover and remedy it. (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; accord Rivera v 2160 Realty Co., L.L.C., 4 NY3d 837 [2005].)
Whether a dangerous or defective condition exists depends on the particular facts of each case and is generally a question of fact for the jury unless the defect is demonstrated to be trivial as a matter of law. (Trincere v County of Suffolk, 90 NY2d 976 [1997].) In determining whether a defect is trivial as a matter of law, the court must examine the facts presented, including the "width, depth, elevation, irregularity and appearance of the defect along with the time, place, and circumstance of the injury." (Trincere, 90 NY2d at 977 [citation omitted].)
Here, Defendant has failed to establish prima facie entitlement to summary judgment. Plaintiff served a second supplemental verified bill of particulars on May 4, 2015. This was thorough and provided Plaintiff's expert's opinions regarding the sections of code which were violated by the single step in the ladies' restroom. The sections were provided—in bold typeface—and extensively quoted. However, Defendant did not address these alleged violations at all. Rather, in conclusory fashion, Defendant submits the expert affidavit of Robert J. Gray, P.E., who opined to a reasonable degree of engineering certainty that there are "no New York State Code violations at the [Defendant's] [r]estaurant with respect to this step." No analysis of Plaintiff's code violations was provided, nor were they even mentioned. Plaintiff even pointed this out in her opposition, to which Defendant replied "[i]f no violations exist, there are none to discuss." This response hardly rebuts the thorough allegations in the bill of particulars as required by the well-established law, and warrants denial of Defendant's motion. (See Winegrad, 64 NY2d at 851; Zuckerman, 49 NY2d at 557; Hollis, 302 AD2d at 700; Balnys, 160 AD2d at 1136.)
Even assuming, arguendo, that Defendant did meet its burden, Plaintiff has raised a question of fact. Namely, whether there was a code violation. Defendant's expert opined in one sentence that there was none, whereas Plaintiff's expert provided an elaborate explanation of the code violations he found. He found that the building codes require either multiple steps or, more recently, a single step with a handrail, because a single step without a handrail is a well-known tripping hazard. In fact, Plaintiff's expert opined that a single step without a handrail has been a code violation for almost 60 years in New York. This difference in opinion creates a question of fact and credibility for jury determination, especially when viewed in a light most favorable to the non-movant. (Swartout v Consolidated Rail Corp., 294 AD2d 785, 786 [3d Dept 2002] [citations omitted] ["[I]n deciding a motion for summary judgment, the trial court must view all evidence in the light most favorable to the party against whom such judgment is sought and, where there is any doubt as to the existence of a triable issue of fact, it should deny the motion since the goal is issue finding rather than issue determination."]; see also Oritz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]; Greco v Boyce, 262 AD2d 734, 734 [3d Dept 1999] [holding courts are "to view the evidence in light most favorable to the nonmoving party, affording that party the benefit of all reasonable inferences, and to ascertain whether a material, [*3]triable issue of fact exists."].)
Since the property was purchased in 2001, 14 years is sufficient constructive notice of the violation to discover and remedy it. Defendant also exercised control over the area and the ability to remedy it by replacing the tiles. Furthermore, the Court's observation of photographs depicting the tiles revealed a deceptive pattern on the ground. Specifically the Court views the middle tile of the step. The first half of the tile is on the top of the step (the horizontal part or the tread), whereas the second half of the tile is continues down the riser (vertical portion of the step). Adjacent so the left and right of the middle tile are two tiles which also are half on the bottom tread (the floor), and the other half extends up on the riser. Even though there is the white stripe on the edge of the top of the step (the tread), this matches the white trim around the restroom. The Court believes reasonable minds could differ as to whether this is visually confusing and deceptive, as the Court believes it does. This further precludes summary judgment.
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED that Defendants' motion for summary judgment is DENIED, and all other relief requested therein is denied in its entirety.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.
IT IS SO ORDERED.
DATED: September 2, 2015
Catskill, New York
ENTER :
_______________________________
HON. LISA M. FISHER
SUPREME COURT JUSTICE
Papers Considered:
Notice of motion dated June 16, 2015; attorney affirmation of Kimberly Hunt Lee, Esq., with annexed exhibits, dated June 16, 2015;
Combined attorney affirmation and memorandum of law in opposition to defendants' motion for [*4]summary judgment of Steven M. Melley, Esq., with annexed exhibits, dated July 7, 2015; and
Reply affirmation of Kimberly Hunt Lee, Esq., with annexed exhibits, dated July 16, 2015. Footnotes
Footnote 1:It appears that the parties executed a stipulation of discontinuance dismissing the complaint against Artemio and Flor Santiago on or about March 9, 2012. However, for the past three and a half years the parties have continued to use the old caption including both of those parties in this action. The reason is not apparent in the record given the discontinuance. The Court does not know if those parties were brought back into the action or if there was some agreement between the parties leaving Artemio and Flor Santiago in the action notwithstanding the discontinuance for insurance purposes. For conformity's sake, the Court also uses the caption the parties have presented in this motion. If there is no reason for Artemio and Flor Santiago to be in the caption, the Court is directing the parties to finally clean up the caption per the stipulation of discontinuance issued in 2012.
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