Harris v Live, Play & Bounce Corp.

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Harris v Live, Play & Bounce Corp. 2016 NY Slip Op 32566(U) November 30, 2016 Supreme Court, Suffolk County Docket Number: 12-35283 Judge: Denise F. Molia Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER INDEX No. 12-35283 CAL. No. 15-009600T SUPREME COURT- STATE OF NEW YORK I.A.S. PART 39 - SUFFOLK COUNTY PRESENT: Hon. DENISE F. MOUA Acting Justice of the Supreme Court MOTION DATE 9-25-15 (001) MOTION DATE 10-6-15 (002) ADJ. DATE 2-26-16 Mot. Seq. #00 I - MG Mot. Seq. #002 - MD; CASEDISP ---------------------------------------------------------------X DEBRA HARRIS, as Mother and Natural Guardian of SOPHIE HARRIS, and DEBRA HARRIS, Individually, LAW OFFICES OF KENNETH J. READY Attorney for Plaintiffs 1565 Franklin Avenue Mineola, New York 11501 Plaintiff, - against LIVE, PLAY AND BOUNCE CORP., BU HOLDINGS, LLC and BU MANAGEMENT LLC, BARRY, McTJERNAN & MOORE LLC Attorney for Defendant !BOUNCE YOU 2 Rector Street, 14th Floor New York, New York 10006 Defendants. ---------------------------------------------------------------X Upon the following papers numbered I to _5_1_ read on this motion for summary judgment ; Notice of Motion/ Order to Show Cause and supporting papers I - 21 ; Notice of Cross Motion and supporting papers 29 - 47 ; Answering 27 - 28; 50 - 51 ; Other Affidavits and supporting papers 22 - 26; 48 - 49 ; Replying Affidavits and supporting papers _;(and after heating eotmsel in st1ppo1"t and oppo$ed to the motion) it is, ORDERED that the motion by defendant !BOUNCE YOU Corp., and the motion by plaintiff Debra Harris are consolidated for purposes of this determination; and it is ORDERED that the motion by defendant !BOUNCE YOU Corp. for summary judgment in its favor is granted; and it is further ORDERED that the motion by plaintiff Debra Harris for summary judgment in her favor on the issue of liability is denied. Plaintiff Debra Harris commenced this action on behalf of her daughter, infant Sophie Harris, to recover damages for personal injuries allegedly sustained by Sophie on October 11, 2011 as a result of [* 2] 1larris v Live, Play and Bounce Corp. Index No. 12-35283 Page 2 an accident that occurred on the premises of defendant 1£30UNCE YOU Corp., improperly sued herein as Live, Play and Bounce Corp. The accident allegedly occurred when Sophie, then four-years-old, was sliding down the slide of the .. Ultimate Modular Challenge:' an inflatable attraction, while a guest at a birthday party held at defendant's premises in Oceanside, New York. Plaintiff alleges, in part, that defendant was negligent in the ownership, maintenance. and supervision of the premises in that it utilized a defective inflatable slide and failed to provide adequate supervision. Defendant now moves for summary judgment dismissing the complaint, arguing that plaintiff executed a liability waiver in defendant's favor prior to the accident, that plaintiff cannot establish how Sophie's accident occurred or identify the cause, and that plaintiff assumed the risk of injury. In support of the motion, defendant submits copies of the pleadings; a copy of plaintiffs executed liability waiver; the transcripts of the deposition testimony of plaintiff, Kyle Breetveld, Andrew Reminick, and Lawrence Harris; and photographs of the 1130UNCE YOU facility. Jn opposition, plaintiff argues that defendant's waiver agreement violates General Obligations Law § 5-326. that Sophie did not have capacity to assume the risk, that defendant did not provide sufficient supervision of the children at the facility, and that triable issues exist as to the cause of the accident. Plaintiff submits, in opposition, unsworn statements of Sophie Harris, and the affidavit of Brian /\very, a purported amusement ride and device safety expert. Plaintiff Debra Harris also moves for summary juclgmcn1 on the i~s11c nf li ahility, arguing that defendant was negl igent in failing to maintain the subject inilatable slide in a reasonably safe condition, and in failing to properly supervise and monitor such slide. In support of the motion. plaintiff submits copies of the pleadings; the transcripts of the deposition testimony of herself, Sophie Harris. Andrew Reminick, and Lawrence 1larris; photographs of the IBOUNCE YOU facility; and the affidavit of Brian /\very. In opposition, defendant argues that plaintiff cannot establish how the accident occurred, that the affidavit of Brian Avery is inadmissihle, that Sophie's unsworn statements arc inadmissible. that the iability waiver is valid and enforceable, and that it was not in loco parentis. The proponent of a summary judgment motion must make a prima facic showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez '' Prospect Hosp. , 68 NY2d 320, 508 NYS2d 923 119861: Winegrtul v New York Un iv. Med. Ctr.. 64 NY2d 851, 487 NYS2d 316 11985]). The movant has the initial burden of proving entitlement to summary judgment ( Wi11egrad v New York Univ. Med. Ctr.. supra). Pailurc lo make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr.. supra). Once such proof has been offered. the burden then shifts to the opposing party who must proffer evidence in admissible rorm and must show facts sufficient to require a trial of any issue of fact to defeat the motion for summary judgmelll (CPLR 3212 lbl: A lvarez '' Prospect Hosp.. supra: Zuckerman l' City of New York , 49 NY2d 557. 427 NYS2d 595 I 1980]). The cou11's function on a motion for summary judgment is to determine whether issues of fact exist. not to resolve issues of fact or to determine matters of credibility. so the !acts alleged by the opposing party and all inferences that may be drawn ar~ to be accepted as true (see Roth v Barreto. 289 /\D2d 557. 735 NYS2d l 97 r2d Dept 200 IJ; O'Neill v Town of Fis/Jkill, 134 /\02d 487, 521 NYS2d 272 r2d Dept 1987]). [* 3] Harris v Live, Play and I3ouncc Corp. Index No. 12-35283 Page 3 /\.plaintiff seeking damages for personal injuries in a premises liability action must first establish, as a matter of law, that the defondant owed him or her a duty of reasonable care in maintaining the proper1y (see Rivera v Nelson Realty, LLC, 7 NY3d 530. 825 NYS2d 422 L20061: Tagle v Jak ob, 97 NY2d 165, 73 7 NYS2d 33 I I]; A l11aslt111i ,, Certified A nalytical Group, Ju e., 89 AD3d 10, 929 N YS2d 620 f2d Dept 2011 I). Without this duty of reasonable care on the part of a defendant, there can be no hreach of such duty and. therefore, no proximate cause of plaintitrs inj uries as a result of the breach (see Con11eally v Diocese of Rock ville Ctr., 116 A03d 905, 984 NYS2d 127 [2d Dept 2014 J; Ortega v Liberty lloldi11gs, LLC, I 11 AD3d 904, 976 NYS2d 147 [2d Dept 2013 ]; N app i v btc. Viii. of Ly nbrook , 19 AD3d 565, 796 NYS2d 537 l2d Dept 2005]). r:wo The owner or possessor of real property has a duty to maintain the property in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries (see Peralta v Henriquez. l 00 NY2d 139, 760 NYS2d 74 1 (2003]: Basso v Miller, 40 NY2d 233, 386 NYS2d 564 11976]; Frank v JS Hempstead Realty, LLC. 136 AD3d 742, 24 NYS3d 714 (2d Dept 2015); Guzman v S tate of New York, 129 AD3d 775, 10 NYS3d 598 [2d Dept 20151). Property owners, however, are not insurers of the safety of people on the premises (see Na/Ian v Helmsley-Spear, Inc. , 50 NY2d 507, 429 NYS2d 606 f 1980]; Do11oltue v Seama11 's Furniture Corp. , 270 AD2d 45 1, 705 NYS2d 29 1 [2d Dept 20001). To establish liability in a premises liability action, a plaintiff must establish that a dangerous or defective condition r:(luc;crl hie; nr her injuries, and that the defendant owner or possessor created the condition or had actual or constructive notice of it (see Gordon v A m erican Museum of N atural History , 67 NY2d 836. 501 NYS2d 646 (1986] ; Giantomaso v T. Weiss Realty Corp.. 142 AD3d 950, 37 NYS3d 313 [2d Dept 2016]; Davis vSut1011 , 136 AD3d 731 (2d Dept 2016); S ermos v Gruppuso, 95 AD3d 985, 944 NYS2d 245 (2d Dept 2012]; S tarling v Suffolk County Water A uth. , 63 A.D3d 822, 881 NYS2d I 49 (2d Dept 2009]: De1111ehy -M urpfly v N or-Topia S erv. Ctr., /11c. , 61 AD3d 629, 876NYS2d512 [2d Dept 20091). In a premises liability case, a defendant moving for s ummary judgment must show, prima facic. that he or she did not create the a lleged defective condition. or have actual or constructive notice of the alleged dangerous or defective condition for a s ufficient length of time to discovery and remedy it (see Witkowski v !flam/ Trees Pub. Lib.. 125 AD3d 768 , 4 YS3d 65 [2d Dept 20 15J; S inclair v Cit au. l I 7 AD3d 713. 985 NYS2d 26712d Dept 2014]: Iugram v Long Is. Coll. Hosp., 101AD3d814, 956 YS2d 107 f2d Dept 2012 J: S l1imller v Warf. 66 A.D3d 762. 887 NYS2d I 93 I2d Dept 20091: Lezama ,, 34-15 Parsons Bl vd, LLC. 16 AD3d 560. 792 NYS2d I 23 f2d Dept 20051). In order to constitute constructive notice, a defect must be visible and apparent and must exist for a s ufficient length of time prior co the accident to permit the landowner to remedy it. and it wi ll not be imputed where the ddcct is latent or would not. upon reasonable inspection, be discovered (see Gordon v A m erican 1 l111se11111 of Natural lli5tory. supra; S c/111ell v Fitzgerald. 95 A.D3d. 945 NYS2d 390 I2d Dept 20 12 J; Applegate v Long Is. Power A utlt .. 53 A.03d 5 15, 862 1YS2d 86 [2d Dept 2008J: Curia/e v S ltarrotts Woods, Inc.. 9 A.03d 473. 78 I NYS2d 47 j2d Dept 2004]). A defendant can also establish its prima facie entitlement to s ummary judgment by showing that plaintiff cannot identify the cause o f the accident (see Viviano '' KeyCorp. 128 A.D3d 811, 9 NYS3d 154 l2d Dept 20151: M itga11g v PJ Ve11t11re H G, LLC. 126 A03d 863, 5 NYS3d 302 l2d Dept 20 15 J; DeForte v Green wood Cemetery, 114 A.D3d 718, 980 NYS2d 499 [* 4] I Jarris v Live, Play and Bounce Corp. Index No. 12-35283 Page 4 l 2d Dept 2014 j: A ntelope v Saint A idan 1s C/111rc/J, Inc., I I 0 AD3d I020. 973 N YS2d 769 l2d Dept 2013J: Kudrina ,.. 82-04 Leffert.\· Temmts Corp .. 110 AD3d 963, 973 NYS2d 364 [2d Dept 20 13]; Califano v Maple lanes. 9 1 A03d 896, 938 NYS2d 140 j2d Dept 20 121). ··Where it is just as likely that some factor other than negligence by the defendant. such as a misstep or loss of balance, could have caused an accident, any determination by the trier of fact as to causation vvould be based upon sheer speculation .. (Califa110 v M aple lanes. supra al 898; see Costantino v Wehe/, 57 AD3d 472, 869 NYS2d l 79 l2d Dept 2008J). To establish negligence, prima focic, based on circumstantial negli g~ n ce , a plaintiff must show facts and conditions from wh ich the defendant's negligence and the causation of the accident by that negligence may be reasonably inferred (see Quiroz v I 76 N. Main, LLC, 125 AD3d 628, 3 NYS3d I03 j2d Dept 2015 J; Costa11ti110 v Webe/, supra; Secof v Greens Co11domi11ium, 158 AD2d 591, 55 l NYS2d 563 [2d Dept I 9901). However, the plaintiff need not exclude every other possible cause of the injury other than the alleged defects. but the evidence must be sufficient to permit a finding of proximate cause based on logical inferences. not speculation (see Quiroz v 176 N . Main, LLC. supra; Reed v Pira11 Realty Corp. , 30 AD3d 319, 818 NYS2d 58 ! 1st Dept 2006); S ecof v Greens Co11domi11ium, supra). A plaintiff need only show that it was more likely or more reasonable that the inj ury was caused by the defendant's negligence than by some other cause (.<iee Gayle v City of New York , 92 NY2d 936, 680 NYS2d 900 l l 998); l/emal1flez v Alstom Tra11sp. , l11c. , 130 AD3d 681, 13 NYS3d 232 r2d Dept 20151; Quiroz v 176 N. Mni1T; fJ,r:) supra). Defendant made a prima facie entitlement to summary judgment as a matter of law by establishing that plaintiff is not able to identify the cause of Sophie's accident (see A lvarez v Prospect llosp. , supra; Wi11egrad v New York Uuiv. Med. Center, supra; Viviano" KeyCorp , supra; Mitga11g v PJ Venture HG, LLC, supra). Defendant submits the testimony of Sophie· s parents, Debra and Lawrence. who did not witness the accident, but testified as to what Sophie told them after the accident. Plaintiff testified that Sophie told her that she ·'fell on the slide" and that she "banged it...on the slide'" immediately after the incident occurred. A few days later, Sophie told her mother that '·she went down the slide ... she slid down ... !h]cr right arm was up, she landed.'' Lawrence l larris testified that Sophie told him that she '"hit [her] elbow at the bottom of the sl ide .., Andrew Reminick. owner of defondant company. testified that he did not know how the accident occurred. but his general understanding is that Sophie "came down the slide with one arm tucked behind her back and one arm underneath her:· Kyle f3rectvcld, desk manager of c.lefcndant company. testified that he had no firsthand knowledge as to how Sophie was injured nor received any indication of same. Plaintiff and Lawrcm:c I larris also testified that the slide looked ''under-innated .. after the accident. Such testimony dcmonstrntcs plaintifrs inability to identify the cause or the accident without resorting to specu lation that defendant's negligence proximately caused the accident (see Mitgmzg v PJ Venture JIG, LLC. SU/Jra: DeForte v Gree11wootl CemeteiJ'. supra: Antelope v Sailll Aidan's C/Jurc/J, Ille. , supra; Kutlrina v 82-04 Lefferts Tenants Corp., supra: Califa110 v Maple Lanes. supra). Jn opposition. plaintiff foiled to raise a triable issue of fact as to the cause of the accident. llcrc. plaintiff has not submitted any admissible evidence showing exactly how the accident occuned (see Cormack v Cross So1111d Ferry Servs. , 273 AD2d 433, 710 NYS2d 380 l2d Dept 2000]), and plaintilTs [* 5] I Jan-is v Live. Play and Bounce Corp. Index No. I 2-35283 Page 5 circumstantial evidence is insunicicnt to infer proximate cause (see A layo v City of New York , 217 /\D2d 567, 629 NYS2d 286 (2d Dept 19951). /\!though Sophie's unsworn statements indicate that she put her right arm down and her left arm up when she went down the slide, and that she hit her arn1 on the ground. such unsworn statements arc inadmissible (see Municipal Testing Laboratory, Inc. v Brom. 38 /\03d 862. 833 NYS2d 56212d Dept 2007J; Briggs v 2244 Morris L.P.. 30 /\D3d 216. 817 NYS2d 239 l Ist Dept 2006]: Napiearlski v Pickering , 278 AD 456, I06 NYS2d 28 l4d Dept 1951 ); S tutsman v Black, 244 AD 764, 279 NYS 770 [4d Dept I 935]; Stoppick v Goldstei11, 174 /\D 306 l2d Dept 19161). Even if plaintifrs submissions were admissible, the circumstantial evidence that Sophie's accicknt was caused by the slide's under-inOation failed to render the other possible causes of the injury sufficiently remote to logically infer that de fo ndant's negligence was the prox imate cause of Sophie's accident (see Gayle v City of New York , supra; l/emandez v Alstom Transp., J11c., supra; Quiroz •' 176 N. Mai11, L LC, supra; Alayo v City of New York, supra). Accordingly, defendant's motion for summary judgment in its fayer is granted. ln light of t11e Court's grant of summary judgment on the issue of liability in favor of defendant, plaintiffs motion for summary judgment in her favor on the issue of liability is denied as moot. Dated: . L~F. ~ //- ~o - 1~ - - -- -- - - /\.J.S.C. X FINA L DISPOSITION NON-FINAL DISPOSI TION

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