Nero v Astoria World Manor, Inc.

[*1] Nero v Astoria World Manor, Inc. 2016 NY Slip Op 51332(U) Decided on September 12, 2016 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2016
Supreme Court, Queens County

Elizabeth Nero and PATRICK NERO, Plaintiffs,

against

The Astoria World Manor, Inc., Defendant.



5767/2014
Robert J. McDonald, J.

The following papers numbered 1 to 13 read on this motion by defendant for an order pursuant to CPLR 3212 granting summary judgment in favor of defendant and dismissing the complaint; and on this cross-motion by plaintiffs for an order granting summary judgment in favor of plaintiffs on the issue of liability:

Papers Numbered

Notice of Motion-Affirmation-Exhibits 1-4

Affirmation in Opposition-Exhibits 5-7

Notice of Cross-Motion-Affirmation-Exhibits 8-11

Affirmation in Reply and in Opposition 12-13

This is an action to recover damages for personal injuries sustained by plaintiff, Elizabeth Nero, on March 19, 2013, when she allegedly slipped and fell on a puddle of water while on the dance floor in defendant's premises. Plaintiff alleges that as a result of the accident she sustained serious injuries to her left ankle that required surgery.

Plaintiffs commenced this action by filing of a summons and complaint on April 11, 2014. Issue was joined by service of defendant's answer dated July 15, 2014. Defendant now moves for an order pursuant to CPLR 3212, granting summary judgment on the issue of liability and dismissing the complaint. Defendant contends that it did not create the condition nor did it have actual or constructive knowledge of it, and therefore, did not have a legal duty or responsibility to remedy the alleged hazardous condition. Plaintiffs cross-move for summary judgment on the issue of liability.

In support of the motion, defendant submits an affidavit from counsel, Kimberly S. Edmonds, Esq; a copy of the pleadings; a copy of plaintiff's verified bill of particulars; copies of [*2]the transcripts of the examination before trial of plaintiff, plaintiff's husband, Patrick Nero, and defendant by Zamina Mohammed and Kevin McClarin; and a videotape of the subject incident.

At her examination before trial taken on Mary 26, 2015, plaintiff testified that on the date and time of the incident she was wearing a dress and heels approximately an inch and a half tall. She was dancing with her husband when she took one step backwards with her left foot and was caused to slip and fall backwards. She did not see anything slippery on the floor at any time prior to her slip and fall. Upon falling, she did notice that her dress was wet with water and observed a five inch puddle of water. The area in which she fell was located towards the front of the room and to the left side. She observed a rolling bar cart which constantly moved throughout the evening, but at the time of the incident was located on the opposite side of the dance floor. She did not know where the puddle of water came from or how long it had been there. Prior to the incident, she did not observe anyone spill anything on the dance floor. Following the incident, plaintiff saw the event maitre d' clean up the water. Her daughter, Amanda Nero, told her that she had stepped in water earlier in the evening when she had taken off her shoes to dance. Amanda felt water in an area closer to the bar cart, which was on the opposite side of the room from where plaintiff slipped and fell. After Amanda told her about the water, plaintiff told someone at the venue that the floor was wet.

Patrick Nero, plaintiff's husband, also testified that he never saw the puddle prior to the incident. He did not know where the puddle came from or how long it had been there. He stated that he never observed anyone with drinks on the dance floor or heard any complaints about the dance floor. He did not observe anyone clean up the puddle.

Zimina Mohammed, defendant's maitre d' on the night of the incident, appeared for an examination before trial on June 16, 2015. She stated that as part of her job, she made sure that the space meets the contract and is clean. She monitors the room all night and typically looks over the dance floor three times per night. She does not typically observe liquid on the dance floor unless someone drops a glass. On the night of the subject incident, she recalled that prior to the incident plaintiff had been feeling dizzy. No one ever complained to her about a wet floor. She did not see a waiter spill anything on the dance floor. The waiters only fill water glasses from pitchers on the tables, which is done specifically over carpet. After the incident, she observed plaintiff with her foot up on a chair and people fanning her. She gave plaintiff some ice. She reported plaintiff's condition to management. After giving plaintiff ice, she inspected the dance floor. She did not clean up any foreign substance on the floor.

Defendant's banquet manager, Kevin McClarin, appeared for an examination before trial on March 10, 2016. He testified that if an incident occurs, the waitstaff reports it to a manager to investigate. He was notified about this incident by Ms. Mohammed, the maitre d'. He went to the banquet room, and observed plaintiff sitting in a chair. Plaintiff told him that she had slipped on something. She did not specify what she slipped on, but pointed to the dance floor area. When he went to the dance floor area where plaintiff had pointed to, he ran his foot over the area to check for liquids or stains on the floor, and found nothing. Prior to checking the area, he was informed by Ms. Mohammed that no one had cleaned any water off of the floor. He did not observe anyone clean the floor. He asked the waitstaff if they had observed anything wet on the floor or if they saw what caused plaintiff to fall and they responded in the negative. He inspects the floor about five times, or once an hour, each party. About one or two parties per weekend would have a [*3]dropped drink. He stated that other than guests dropping drinks, the dance floor is not otherwise caused to become wet. He does not see spilled drinks often because guests are instructed by the maitre d' and/or waitstaff not to take their drinks onto the dance floor. If there is a spill, standard procedure is for a waiter to block off the wet area with two chairs, and then signal to another waiter to help clean with a mop or get the maintenance crew to clean. Prior to the incident, and during a routine inspection of the floor during the party, he did not observe any wetness or debris on the dance floor.

Based on the submitted deposition testimony, defendant contends that it did not have actual or constructive knowledge of the alleged hazardous water condition which caused plaintiff to slip and fall as all of the witnesses testified that they did not see the alleged puddle of water at all prior to the incident (citing Gloria v MGM Emerald Enters., 298 AD2d 355 [2d Dept. 2002]). Additionally, defendant's witnesses testified that no one had reported a water condition existing on the dance floor prior to the incident. Defendant further contends that even if plaintiff did report that the dance floor was wet prior to the incident, the puddle of water which plaintiff allegedly reported to defendant's employee was on the opposite side of the room from where plaintiff slipped and fell. Thus, such reporting is insufficient to establish constructive knowledge (citing Gloria v MGM Emerald Enters., 298 AD2d 355 [2d Dept. 2002]; Crawford v AMF Bowling Ctrs., Inc., 18 AD3d 798 [2d Dept. 2005]). Lastly, defendant contends that it did not cause or create the alleged water condition as its employees were trained to avoid creating such conditions.

In opposition, plaintiff submits an affirmation from counsel, Alyssa J. Held, Esq.; a copy of plaintiff's verified bill of particulars; a copy of the notice to produce; a copy of the So Order Stipulation dated March 14, 2016; a copy of the Notice of Deposition dated June 1, 2016 and the response to the Notice of Deposition of Ike Ahn; and affidavits from plaintiff, Stephen Valasek, Mary Valasek, Kholwatie Arjune, and Amanda Nero.

Non-party witness Stephen Valasek affirmed that he saw plaintiff fall down. He further stated that the dance floor was wet and slippery and there was liquid on the floor. His mother, Mildred Valasek, fell on the dance floor due to the same water that was on the dance floor about twenty minutes before plaintiff fell.

Non-party witness Mary Valasek confirms Stephen Valasek's statements and further affirms that she saw a woman employee carrying a pitcher of water in the in the area where plaintiff fell prior to the incident. The employee was carrying the water over her head, and did not stop as she was passing through, taking the water to another party.

Non-party witness Kholwatie Arjune also saw plaintiff fall. She affirms that after the incident, she went over to the area where plaintiff fell and saw water on the floor. It was hard to see that water was on the floor because the floor was wood. Ms. Arjune further affirmed that employees were carrying food and liquids back and forth from the kitchen to the tables and were walking across the dance floor. Such practice went on for over twenty minutes.

Non-party witness Amanda Nero submits an affidavit affirming that she also saw her mother, plaintiff, fall down. She affirms that the dance floor was wet a few times during the night. She had taken off her shoes and felt liquid on her feet. She further affirmed that she told the maitre d' each time about the wet dance floor and had asked her to clean it up. The maitre d' did not clean up the water. Approximately one hour after she first told the maitre d' about the [*4]water, plaintiff fell.

Plaintiffs' counsel argues that summary judgment should be denied as there are issues of fact based on the submitted affidavits. Plaintiffs contend that although defendant claims that it is its policy not to allow drinks on the dance floor, defendant's own witness, Mr. McClarin, testified that he has seen spilled drinks on the dance floor prior to plaintiff's incident. Additionally, non-party witnesses, Stephen Valasek, Mary Valasek, and Kholwatie Arjune, each affirmed that they saw the waitstaff cross the dance floor with water pitchers. Based on such, counsel contends that there is an issue of fact as to whether defendant actually created the condition. Moreover, based on Amanda Nero's affidavit, plaintiffs contend that there is an issue of fact as to whether defendant had actual notice of the wet conditions on the dance floor since Amanda Nero reported the condition to the maitre d' prior to the incident. Additionally, there is a question of constructive notice as to whether defendant should have known to inspect the dance floor on a regular basis as it was foreseeable that water would fall on the dance floor since its own employees carried water pitchers across the dance floor and since there was a rolling bar cart with wheels that were situated on the dance floor itself.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his or her position (see Zuckerman v City of New York, 49 NY2d 557 [1980]). A defendant owner or entity who is responsible for maintaining a premises who moves for summary judgment in a slip-and-fall or trip-and-fall case involving the property 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 (see Bloomfield v Jericho Union Free School Dist., 80 AD3d 637 [2d Dept. 2011]; Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655 [2d Dept. 2009]; Bruk v Razag, Inc., 60 AD3d 715 [2d Dept. 2009]).

"To meet their initial burden on the issue of lack of constructive notice, the defendants must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Birnbaum v New York Racing Association, Inc., 57 AD3d 598 [1986]; see Pryzywalny v New York City Tr. Auth., 69 AD3d 598 [2d Dept. 2010]; Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655 [2d Dept. 2009]; Braudy v Best Buy Co., Inc., 63 AD3d 1092 [2d Dept. 2008]).

Upon review and consideration of defendant's motion, plaintiffs' opposition and defendant's reply thereto, this Court finds that the evidence submitted by defendant was not sufficient to demonstrate, prima facie, that defendant did not create the condition nor to show that it did not have actual or constructive notice of the allegedly hazardous condition prior to plaintiff's fall.

Defendant failed to proffer sufficient evidence as to when the dance floor had last been inspected prior to the injured plaintiff's fall. Although the maitre d' testified that she typically looks over the dance floor three times per night, and the banquet manager testified that he typically inspects the dance floor once an hour, neither of defendant's witnesses specifically testified as to when they inspected the premises relative to plaintiff's incident. Therefore, the deposition testimony of the defendant's employees merely referred to their general inspection [*5]practices of the dance floor, but provided no evidence regarding any particularized or specific inspection or cleaning procedure in the area of plaintiff's fall on the date of the incident. Additionally, based on the non-party witnesses affidavits affirming that there was water in the spot where plaintiff fell approximately twenty minutes prior to plaintiff's fall, defendant failed to demonstrate that the water was not on the floor for such time that the defendant could have discovered the hazardous condition and remedied it.

Thus, defendant failed to make a prima facie showing that it did not have constructive notice of the alleged dangerous condition of the condition which caused plaintiff's fall (see Baratta v Eden Roc NY, LLC, 95 AD3d 802 [2d Dept. 2012]; Levine v Amverserve Assn., Inc., 92 AD3d 728 [2d Dept. 2012]; Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655 [2d Dept. 2009]). As defendant failed to establish its entitlement to judgment as a matter of law, it is not necessary to consider the sufficiency of the opposition papers submitted by plaintiffs (see Dixon v Superior Discounts & Custom Muffler, 118 AD3d 1487 [2d Dept. 2014]; Maloney v Farris, 117 AD3d 916 [2d Dept. 2014]; Giraldo v Twins Ambulette Serv., Inc., 96 AD3d 903[2d Dept. 2012]; King v 230 Park Owners Corp., 95 AD3d 1079[2d Dept. 2012]; Hill v Fence Man, Inc., 78 AD3d 1002 [2d Dept. 2010]).

In any event, material issues of fact exist. Here, the parties have presented differing versions as to how the incident occurred, including whether plaintiff fell because she was dizzy or slipped on the dance floor and whether a puddle of water ever existed in the area where plaintiff fell. Defendant's witness testified that when he inspected the dance floor after plaintiff's incident, he did not find any wet substance. Contrarily, plaintiff herself and non-party witness Kholwatie Arjune each affirmed that there was liquid on the dance floor in the area where plaintiff fell. Further, although plaintiff stated that she did not see the liquid on the dance floor until after she fell, three non-party witnesses affirmed that they saw water in the area where plaintiff fell approximately twenty minutes before the incident. As "a court may not weigh the credibility of witnesses on a motion for summary judgment, unless it clearly appears that the issues are not genuine, but feigned", there are triable issues of fact including the credibility of the witness (Conciatori v Port Auth. of NY & N. J., 46 AD3d 501 [2d Dept. 2007]; see Boockvor v Fischer, 56 AD3d 405 [2d Dept. 2008]; Makaj v Metropolitan Transp. Auth., 18 AD3d 625 [2d Dept. 2005]). Thus, because issues of fact exist as to how long the alleged puddle of water had existed and as to whether defendant had sufficient notice of the alleged hazardous condition to remedy the alleged hazardous condition, plaintiffs' cross-motion for summary judgment is likewise denied.

Accordingly, for all of the above stated reasons, it is hereby,

ORDERED, that defendant's motion for summary judgment is denied; and it is further

ORDERED, that plaintiffs' cross-motion for summary judgment is denied.

Dated: September 12, 2016

Long Island City, NY

ROBERT J. MCDONALD

J.S.C.