Odiorne v JASCOR, Inc.

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Odiorne v JASCOR, Inc. 2018 NY Slip Op 31064(U) June 1, 2018 Supreme Court, Seneca County Docket Number: 49029 Judge: Daniel J. Doyle Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] <.;TATE OF NFW YORK SENECA COUNTY <.;L:I'RFME COURT --·- -···-· - - - - - - --·----- (;LORIA ODlORNE and DA VlD ODIORNE, Plaintiffs, Index No.: 49029 -\·s- 11\SCOR. INC., Defendant. Appearances: :\nthonv S. 8ottar, Esq., Bottar Law PLLC, for the Plaintiffs 1.isa M. Robinson, Esq., Goldberg Segalla LLP, for the Defendant Daniel J. Doyle, J. In this slip-and-fall premises liability casl', there arP two motions pt>ndin1; beforl' tlw Court: (1) the Defendant's motion for summary judgment disrnissint~ the c·omplaint and (2) l'laintiffs' cross-motion pursuant to CPLR .'\ 126 seeking to strike the Dekndant's answer or some other sandion based upon the failure tll produn' an accident report of thl' incident. On February 28, 2014, at around 7:15 A.M., Plaintiff Gloria Odiorne vvas at the \kDonald's in \Naterloo, Seneca County. At that timl', ,1 McDonald's employl'e began mopping a portion of the lobby floor that stretched from -1 d sick [* 2] l'ntry door to the beverage machines. The emplovee placed two wet floor signs in tlw area that lw was mopping. At approximatelv 7:31 AM., tlw employee mopped the M<'a in front of the entry door and had moved to th<' otlwr area. 1\lso dt 7:31 l\.M., a customer entered the McDonald's through the entry door and ,1ppearc·d to have no issue with traction while walking on tlw mopped floor. At 7:32 A.tl.L the l'laintiff got up from her table and approached the entry door an'a where thl' emploveP had just mopped. Plaintiff stdtcd that she saw the l'mplnvee mopping ,111d that she also saw the wet floor sign. l\t 7:32 AM., just after she passed the wet floor sign that was placed on the floor, Plaintiff loses lwr balance and falls fonv<1rd, sustaining an injury to hl'r shoulder. Plaintiffs commPnced this action thert>after and the Plaintiffs fikd the notl' ot issue on Dt>cember 13, 2017. The accompanying certificate of readiness ct>rtified that all discovery now known to be necessary was completed and that tlwn· wen' "no outstanding requests for discovPry." A. The Discovery Motion Plaintiffs move un~kr CPLR 3126 to strike the Defendant's answer lwc·ausL' the Defendant failed to tender a completed accident report of the incident despitt.' ,1 demand for the report. -2 [* 3] It is Wt'l!-settled that a partv who files a note of issue and certificate of readiness thal states that discovery is complete and that then· are no outstanding discO\'en· re'-luests waives any objection to the adeL1uacy of the disdnsurl'S made bv the opposing party (Stel'ltmw l' News Cro11p /l11/1/1c11/10HS, /11c., 64 NY2d 174, 186 [1984JK F/X Re11ta/s E-r Fquif', LLC" FC Yo11kas Assoc, LLC, Lil 1\0.'1d 945, 94b [2d Dept 2015[; Mnrfe u City of New )'ork, 102 AD3d 557, 558 [1st Dept 20131). Fven if the Court were not to find a waiver of discoverv, the Plaintiffs han• npt demonstrated their entitlement to relief under CPLR 3126 in that thev did not "file a mtition to compel discovery pursuant to Cl'LR 3124, did not fik an affirmation pursuant to 22 NYCRR 202.7(a), and did not establish that any failure to disclose was a willtul failure that would justify striking a pleading" /,N.K. A1ar/t. Co1p. "T/ilV, Ud., 155 AD3d 1611, 1614 [4th Depl 20171). Therdorl', the l'laintitts' motion lo strike the Defendant's answer under Cl'LR :'>124 should be denied. B. The Summary Judgment Motion A party seeking summary judgment pursuant to CPI .R '.'212 must make d prima facie showing of entitlement to judgment as a matter of law and submit sufficient evidence to demonstrate the absence of any material issue of fact (lsdi11 -3- [* 4] {"Co. /11c. '" fv1a1111 /udtl l.1111da11, 71 NY2d 420 [1988j ). The Court musl view the l'vidence presPnted in the light most favorable to the nonmoving partv (1~11'·"' l'. ) MCA o(Crcatcr Buffalo, 12 AD3d 1089 l4th Dept 2004] ). If the proponent demonstrates entitlement to summary judgment, the opposing party must then demonstr<ltl', gl'nerally by admissible t>vidence, the existence of an issuE' of fact requiring a trial (711ckcrn11w l'. City o{NCll' York, 49 NY2d 851 [1985] ). Ind prPmisPs liability case, though a landowner bas a duty to maintain ih property ind reasonably safe condition, it is not obligated to warn against a L·ondition that niuld be readily observPd bv the reasonable use of one's senses and was not inherently dangerous (Dnu>so11 i' C11fiero, 292 AD2d 488, 488 [2d Dept 20021). ~kre, it i<; undisputed that the McDonald's employee was mopping the area in •1uestion at the time the Plaintiff slipped and that there was a wet floor 'lgn that was placed at the location at which the Plaintiff fell. Plaintiff in her LIL-position admitted that she saw the wet floor sign and that she saw tlw employc•e mopping. Under these tacts, courts have found that a defendant has ('stablisbl'd a prima facie entitlement to summary judgment (sec, l'.g. flroll'll u :\Jell') ork l'v1m-riol J\l!arq11is Hotel, 95 AIJ3d 585, 586 [1st Dept 2012] (dcfL~nd<:int l'ntitled to summary judgment where defendant placed warning sign after -4- [* 5] mopping, plaintiff saw sign and saw that floor was wet); Rzeero l' Sp11/a111' I 11tcr11ri'c', Cur11., 95 AD:'\d 984, 985 [2d Dc'pl 20121 (def('ndant Pntitled lo summary judgmPnt in case where employl.'l' just mopped floor and plan'd wet floor si~~n); Rm11,;cy 1· .Ml. Vcr11011 Bd. of tduc., :n AD3d 1007, 1008 [2d Dept 20061 (ddendant entitled to summary judgment where floor was being mopped at time pldintiff' s slipped and fell)). In response, the Plaintiffs have' failed to raise a triable issue of tact. The Plaintiffs' reliance upon Doli11ar l' Kalcida Hea/111, 155 /\D3d 1576 (4'" Dept 2017) ilnd Fi1111cnt i· D11k's Sporting Goods, file., 160 AD3d 1259 [3d Dept 20181 is misplaced; in this rnse there was no evidence thilt the floor was Pxcessively wet or that the Wilrning signs placed in the area were inadequate. Indeed, the Plaintiff admitted she saw the warning sign before proceeding onto the floor, and though the Defendant's employee was still engaged in mopping the floor at the time the l'ldintifl fell, there wds no evidence of excess water on the floor at the tim<' the l'laintiff fell. The Plaintiffs d<iim that mopping at that time, which corresponded to the 1wak breakfast rush at McDonald's breached the McDonald's policy on mopping. Even if that were supported by the record, "internal policies do not provick• tlw standard of care in ,1 negligence case" (McDaniel" Codi Tmll!i/'·' Ud., 149 AD3d -5- [* 6] 5Y5, 596 llst Dept 2017]). Likewise, the statement attributed to the McDonald's manager chastising the employee who was mopping and telling him, "you know that to use a mop on lhe floor" is not sufficiently probative to defeat summarv judgmL'nl motion (see Sclwl"l'r P Golu/1Co1y,101 AD3d 1286, .1288 [3d Dept 2012)). Pin,illy. Plaintiffs' assertion that thP McDonald's manager chastised the employcp tor mopping rather than using the floor cleaning machine is likewise unavailing. The employee explained that he was mopping the area based upon the build up ol rock salt and that using the floor cleaner would only spread the rock salt around the floor. Though there was a dispute whether there was prPCipitation outside on tht' day before and the day in question, the Plaintiffs do not dispute the assertion madP bv the employee that there was a build up of rock salt in the area. Even if the Court were to disregard the unchallenged assertion that the floor cleamng machine would only spread the rock salt around thl' floor, the l'ldintiffs have' failed lo show that mopping the floor was inherently dangerous. i\s the Udendanl has established its prima facic entitlement to summary judgnwnt and the Plaintiffs have failed to raise a tridble issue of iact, the I )efendant' s motion for summary judgment should be granted. 6- [* 7] C. Conclusion Based upon the foregoing, il is hereby ORDERED that the Plaintiffs' cross-motion is DENIED in its entirt'ly; and it is further ORDERFD that the Defendant's motion for summarv judgment is CR;\NTED and the Plaintiffs' complaint is dismissed. June 1, 2018 .Doyle Supreme Cou -7-

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