Spinella v Fink's Country Farm, Inc.
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Spinella v Fink's Country Farm, Inc. 2017 NY Slip Op 31134(U) May 24, 2017 Supreme Court, Suffolk County Docket Number: 15-1548 Judge: Thomas F. Whelan 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 ORDF.R COPY INDEXNo. 15-1548 CAL. No. 16-0l 1380T SUPREME COURT - STATE OF NEW YORK I.A.S. PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS WHELAN Justice of the Supreme Court MOTION DATE 11-17-16 ADJ. DATE 1-9-17 Mot. S.eq. # 001 - MG;CASEDISP ---------------------------------------------------------------)( GLENN SPINELLA, an Infant by His Mother and Natural Guardian, ELENA SPINELLA and ELENA SPINELLA, Individually, PONTISAKOS & BRANDMAN, P.C. Attorney for Plaintiffs 600 Old Country Road, Suite 323 Garden City, New York 11530 Plaintiffs, - against FINK'S COUNTRY FARM, INC., MAZZARA & SMALL, P.C. Attorney for Defendant 1698 Roosevelt Avenue Bohemia, New York 11716 Defendant. ---------------------------------------------------------------X Upon the following papers numbered I to~ read on this motion for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers I - I 4 ; Notice of Cross Motion and supporting papers _ ; Answering Affidavits and supporting papers 15 - 16 ; Replying Affidavits and supporting papers 17 - 18 · Other_; (and after hea1 i11g eot111sel in s11pport a:11d opposed to the 1notion) it is, ORDERED that the motion by the defendant for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint is granted. This action was commenced to recover damages, personally and derivatively, for personal injuries allegedly sustained by the infant plaintiff, Glenn Spinella (Glenn), on October 25, 2014 when he tripped and fell on a corn stalk at the farm operated by the defendant Fink's Country Farm, Inc. (the defendant or the farm). It is undisputed that, in September and October each year, the defendant conducts a fall festival at its farm which features rides, games, and family attractions including a com maze designed and created by the principal officers of the corporate defendant. The complaint alleges, among other things, that the defendant is liable for the infant plaintiff's injuries on the grounds that its property "was in a dangerous, defective, hazardous and unsafe condition." The complaint further sets forth a cause of action for loss of services and comfort on behalf of Glenn' s mother, the plaintiff Elena Spinella (Spinella). [* 2] Spinel la v Fink·s Country Farm. Inc. Index No. 15-01548 Page 2 The ddcmlant nov.1 moves for summary judgment dismissing the complaint on the grounds. amnng 01 her things. that it did not haw actual or constrm:ti vc notice or the al legedly defective condition. and that .. tile presence of a corn stalk ... on the ground in tht.: maze docs not constitut<.: an unreasonably unsafe condition." Jn support of its motion, the del'cndant subm its the pleadings, the deposition transcripts of the parties. a copy of a written report by a worker at the form. and an excerpt from the hospital records for Glenn's treatment after this incident. The infant plaintitrs emergency room records relied on by the defendant arc not certified. arc plainly inadmissible, and have not been con:;idercd hy the Court in making this determination (see CPLR 45 18; llushaml.'i v Lel'i11e, 79 /\D:>d I 098. 9 I 3 NYS2d 773 12d Dept 20 I 01; lusme11 11 Konopka. 38 AD3d 608, 831 NYS2d 530 12d Dept 2007]; Mejia 1• DeRose, 35 /\D3d 407. 825 NYS2d 722 1 Dept 20061). 2d The proponent of a summary judgment motion mu:;t make a rrima fa<.:ic :;ho wing or entitlement to judgment as a matter or law. tendering sufficient evidence to eliminate any material i:;sue or foct (see Afrarez v Prospect llosp.. 68 NY2d 320, 508 NYS2d 923 f 19 861~ Wine.grad v New York U11h J Hed. Ctr.. 64 NY2d 85 1, 487 NYS2d 316I1985 ]). The burden then shifts to the party oppo:;ing the motion which must produce cvidentiary proo r in admissible l'orm sutlicicnt to require a trail or the material issues of fact (Rot/1 I' Barreto, 289 /\D2d 557, 735 NYS2d 197 l2d Dept 200 IJ; Rebecclli v Whitmore, 172 /\D2d 600. 568 1 YS2d 423 I2d Dept 1991 J: 0 'Neill v Town of Fis/11\ill. I 34 /\D2d 487, 52 1 NYS2d 272 I2d Dept 19871). Furthermore, the partics' competing interc:;t must be viewed .. in a light most lavorablc to the puny opposing the motion·· (Marine Midla11d Bank, N.A. v Dino & Artie's· A utomatic TN111.'imis..,·io11 Co.. 168 /\D2d 610. 563 NYS2d 449 [2d Dept 1990]). 1 • /\t her deposition. Spinella testified that she arrived at the farm with her childr<.:n and boyfriend approximntcly four hours before they entered the com maze together, that she had been in a corn maze two times previously, amt that a corn maze is generally a dirt pathway with corn stalks on both side:; or the path. She stated that this incident happened approximately six minutes into their walk through the ma1.c. that she observed approximately six fallen corn stalks during that time, and that she did not make any c.:omplaints ahout the conditions at the farm before thi:; incident. She indicated that her daughter and Cilcnn were out sight around a hend in the maze when :;he heard a scream. that Glenn walked backed to her holding his arm. and that he told her that he had ''tripped and fell on a corn stalk." Spinella further testilicd that they then ex ited the muze. that she met Michelle Fink (Mrs. Fink) after this incident, that she did not tell Mrs. Fink what had happened to Glenn. and that Gknn and she traveled to St. Charles I Iospital in an ambuluncc. She acknowledged that she did not sec Glenn fall. that she <lid not rccal I i r she told Mrs. Fink that Cllcnn had been running lo catch up to his sister before his fo!L or irshe told the: hospital staff that Glenn had been running when he fell. or Glenn. who w:.:is eight years old at the time or his deposition. testified that he knew the difference between telling a lie and telling the truth, that he entered the maze with his family, and that the only instructions his mother gave him before going into the ma1'.e wa:; to .. stay close:· I le stated that his accidcnl happened approximat..:ly five or six minutes a!1er he entered the maze, that he tripped when he: went to "'catch up lo his sister," and that he went back to where his mother was after his fall. I le indicated that he told his mother that he "'tripped over a piece of c.:orn stalk that was lying on the ground:· that he did not sec the corn sta lk before he fell. and that he saw the stalk alicr his Call. Glenn further [* 3] Spinella v Fink · s Country Farm. Inc. Index No. 15-01548 Page 3 tcsti licd that he told his mother that he was ··speed walking" or ··wal king like lastly (sic\"' to cutch up to his sister when he foll. J\t her deposition. Mrs. Fink tcsti ricd that she is the presidcnt of the corporate dcfendant. that the defendant holds a foll festival with many family activities each year. an<l that she and her husbancJ, David Fink (Mr. Fink) design and create the corn nwze which is a feature or each festival. She stated that the maze is approximately live acres in si1.e. that they begin the process of design and creation of the maze in July each year including the planting of the corn, and that t.he corn grows to between eight and ten feet tall hy the time the fostival opens in September each year. She indicated that she or her husband would walk though the maze each day before the opening of the festi val to the public, and during lhe day whik it is open, to remove garbage or debris and check for ''holes" in the pathway, and that the definition or debris includes corn stalks, which they would pick up and remove from the ma7.e. Mrs. Fink further testified thut she learned of this incident at approximately 4:00 p.m. when a volunteer announced it over the two-way radios they used. that she contacted the volunteer emergency medical technician on the site. and that she called for an ambulance to transport Glenn to the hospital. She stated that Spinella did not complain of any unsafe conditions on the day in question. and that the defendant docs not maintain any records or logs of their walkthrnughs of the corn maze. Mr. Fink testified that he is the vice president of the corporate defendant, that the defendant uses employees and volunteers to staff the Call festival. and that he prepared, maintained, and checked the subject corn maze. I le stated that be walks through the corn maze approximately five times each day or the festival. that he docs so every one and one-half hours to one hour and forty-live minutes. and that he picks up any garbage m1d keeps the maze "neal and presentable.'' He indicated that he noticed one corn stalk had fallen down in tht.: pathway of the maze at approximately 11 :00 a.m. on the day or Glenn ·s accident. and that he picked up that stalk and carried it out of the maze. Mr. Fink further testified that he had occasionally seen as many as six corn stalks down in a given walk through of the maze. and that he would cncounter fallen stalks ·'one or two.. times in every live times he would walk through the maze. I le indicated that this was the first time anyone hud fallen in one of lhe defendnnt' s mazes. that he was stat ioned in a tower located in the center of the maze to help visitors on the day oCCHcnn·s !'all. and that he did not sec the foll occur. The defendant submits a handwritten report of the medical services rendered to Glenn by its emergency medical technician. for the purposes or this motion only. the undersigned will consider the content or said report am! the notation that Glenn and Spinella indicated to him that Glenn ""was rnnning in corn maze tripped and ICJI. .. l lowever. the ckfondant docs not. and possib ly cannot, contend that Cilcnn was the so le proximate cause of his accident 011 this basis. It is well settled tha t the ..culpable conduct at!ributablc lo the claimant or to the decedent, including contributory negligence or assumption or risk. shall not bar recovery. but the amount or dmnages othcrwisc recoverable shall be diminishcd in the proportion which the culpable conduct attributahlc to Lhc claimant or decedent bears to the culpable conduct which caused the damages .. (CPLR 14 l I). In udclition, the issue of comparntivc negligence is generally one for the jury to decide (Todd v Godek. 71 i\D3d 872. 895 NYS2d 861 [2d Dept 2010]). Thus. the submission of the report does not establish the defendant's entitlement to summary j udgmcnt herein. [* 4] Spinella v Fink's Country Farm. Inc. Index No. 15-01548 Page 4 The undersigned now turns lo address the merits or the defendant's motion. /\ landowner has no duty to protect or \·Varn against conditions that are not inherently dangerous and thnt arc read ily observable by the reasonabk use of one· s senses (see M11/le11 v Helen Keller Servs. for the Blind, 135 /\D3<l 837, 23 YS3d 350 l2d Dept 20 161; Mathew v A .J. Richard & Sons, 84 /\03d 1038, I039, 923 NYS2d 218 l2d Dept 2011 I; Tyz vFirstSt. Holdi11g Co., Inc. , 78AD3d 818, 910 NYS 2d 179 r2d Dept 20 10 !). Based upon the deposition testimony, the defendants have demonstrated. as a matter of law, that the condition was open and obvious and not inherently dangerous (see Seelig v Burger King Corp., 66 /\D3d 98(>, 888 NYS2d 123 j2d Dept 20091; DiGeorgio v /lllorottll, 47 AD3d 752, 850 NYS2d 556 12d Dept 20081: Errett v Great Neck Park Dist. , 40 AD3d 1029, 837 NYS2d 701 12d Dept 20071). A condition is deemed open and obvious as a matter of law when it could not be overlooked by anyone making reasonab le uses of bis senses (A rsenault vState, 96 AD3d 97, 946 NYS2d 276 l3d Dept 20121; Garri<lo v City of New York, 9 /\D3d 267, 779 NYS2d 208 11st Dept 2004 !). llcre, the plaintiffs wen: aware or their presence in a recreational corn maze surrounded by corn stalks. The presence of corn stalk, possibly eight to ten !Cct tall. in the midd le of a dirt path in a corn ma1.e cannot be overlooked by anyone making reasonable use of his senses. In addit ion, "landowners will not be held liable for injuries arising from a condjtion on the property that is inherent or incidental to the nature of the property, and that could be reasonably anti cipated by those using if' (Torres vState of New York , 18 AD3d 739. 795 NYS2d 71012d Dept 20051; see also Progressive Northeastem Ins. Co. v Town of Oyster Bay, 40 AD3d 6 J 2. 835 NYS2d 406 12d Dept 2007); Stt111to11 v Town of Oyster Bay, 2 /\D3d 835, 769 NYS2d 38112d Dept 20011). J !ere. a fallen corn stalk in the middle of a corn maze is inherent in or incidental to the maY.c, and could be reasonably anticipated by the plaintiffs (see Maldonado v City of New York , 29 Misc 3d I 072, 908 NYS2d 841 lSup Ct, Kings County 20 101fsummary judgment granted when plaintiff tripped on fallen tree branch in city park J). Finall y, to the extent that the plaintills contend that the defendant has fai led to establish that it did not ha ve constructive notice of the condition \Vhich caused Glenn's fall , requiring the denial of its motion, it is wi thout merit. Generally, owners and lessees have a duty to maintain their property in a reasonably safe condi tion under the existing circumstances, including the likelihood or injury lo others, the seriousness of the injury and the burden or avoidi ng the risk (see Peralta v He11riq11ez , I 00 NY2d 139. 144. 760 NYS2d 74 I r2001]: Demsbick v Comm1111ity Ho us. Mgt. Corp., 34 AD3d 518. 519. 824 NYS2d I 66 l2d ()cpl 20061). They may be held liable for inj uries a rising from a dangerous condition on their property if they created the condition or had actual or constructi ve notice of it and a reasonable time within which to remedy it (see Herman v lifeplex, LLC. I 06 AD3d 1050, 966 NYS2d 47} l2d Dept 2013 J; Petersel v Good Samarita11 llosp. of Su/fem , N. Y., 99 /\D3d 880, 951 NYS2d 917 I2d Dept 2012 I). In order to constitute ··constructive notice" a defect '"must be visible and apparent and it must exist for u suflicicnt length of time prior to the accident" to discover and rl!medy it (see Ch ianese l ' Meier, 98 NY2d 270, 746 NYS2d 657 P002 j, citing Gordon v American M useum of Natural llistm:r. 67 NY2d 836. 50 1NYS2d646 fl9861. citing Negri 11Stop & Shop. 65 NY2d 625, 49 1 NYS2d151 119851). On a motion fo r summary judgment to dismiss the complaint. the defendant seeking j udgment in his or her favor in a trip-and-foll action has the burden or submitting evidence sufficient to make a pri mu [* 5] Spinella v Fink· s Country rarm. Inc. Jndcx No. 15-0 1548 Page 5 facic showing that he.; or she neither crcate<l Lhe alleged dangerous condition nor had actual or constructive notice of ils ex ist<::nce for <l sufficient period or time Lo discover and remc<ly it (st'e Le1·ine 1• G.f: l/o/dillg, lite.. 139 AD3d 910, 32 NYS:ld 588 l2d Dept 2016 1: Mllrchese vSt. Martha's R.C. Clturc!t, Jue., I06 /\D3<l 881, 965 NYS2d 557 12d Dept 2013 I). To meet its initial burden on the issue or lack or constructive notice. the defendant must offer some evidence as to when the area in question was last cleaned or inspected relati vc to the time when the plaintiff fell (see Mllrchese v St. Martita's R.C. C!turclt, lite., id.; Oliveri v Vassar Bros. llosp., 95 AD3d 973, 943 NYS2d 604 l1cl Dept 20121: Santos v 786 F/atbus!t Food Corp.. 89 AD3d 828. 932 NYS2d 525 [2d Dept 20111). I krc. thl.! de fondant has met its initial burden by establishing that the maze was inspected prior to Glenn's acc ident. Thus, the del'cndant has established their prima facic cntitlcml!nl lo summary judgment dismissing the complaint. In opposition to the motion. the plaintiffs submit the affirmation of their attorney who conicnds that the fallen corn stalk was a hazardous condition. that the defendant has faikd to '·prove its claimed lack of notice." and that the dcfondant's regular inspections or the maze were not ··superfluous'' as claimed by counsel for the defendant. The ailidavit of an attorney who has no personal knowle<lgc of the focts herein is insufficient to defeat a motion for summary judgment (Sa11bria v Paduc!t. 61 J\D3d 839, 876 NYS2d 874 l2d Dept 20091~ Warri11f(to11 v Ryder Truck Rental, Inc., 35 Al)3d 455, 826 NYS2d 152 j2d Dept 2006 ]). Herc, the plaintiffs have failed to submit admissible evidence sunicicnt to raise issues or fact requiring a trial of this actnon. J\ccordingly. the defendant's motion for summary judgment is granted. f\~ r · Dated: I I 5;~, ~'J/ l7 1 -' 1,' ) 1 '1_ ! '-~ ...l -' .i ! J X FINAL DISPOSITION .I f "-!!' C\~ . .. ). . 1-v.d 1~(6. l..r , ( ' .1.S. . . ';.;-- ' f: !~~ cl r.J \ NON-FINAL DISPOSITION '-""\.)
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