Ross v Powell Foods of 14041, LLC

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Ross v Powell Foods of 14041, LLC 2018 NY Slip Op 33435(U) November 19, 2018 Supreme Court, Queens County Docket Number: 705199/16 Judge: Allan B. Weiss 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. [*FILED: 1] QUEENS COUNTY CLERK 11/29/2018 02:33 PM NYSCEF DOC. NO. 69 INDEX NO. 705199/2016 RECEIVED NYSCEF: 11/29/2018 Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY Present: Honorable, ALLAN B. WEISS IAS PART 2 Justice MICHAEL ROSS, as administrator of the estate ofCARRIELEE STROTHER-ROSS, deceased, Plaintiff, Index No.: 705199/16 Motion Date: 8/1/18 Motion Seq. Nos.: 5, 6, 7 -againstPOWELL FOODS OF 14041, LLC, BURGERKING 14041, and BURGERKING CORPORATION, Defendants. x The following papers numbered E34 to E68 were read on these motions by defendants for leave to renew, pursuant to CPLR 2221 (e), two prior motions denying defendants' requests for dismissal of the complaint against defendant, Burger King Corporation (Burger King) (Seq. 5), pursuant to CPLR 3211 (1); and for leave to subpoena a non-party (Seq. 6); and a motion for summary judgment seeking dismissal of the complaint against both defendants, pursuant to CPLR 3212. Papers Numbered Notices of Motion - Affirmations - Exhibits ..................................... . Answering Affirrr.ations - Exhibits .................................................. . Reply Affirmations ............................................................................ . E34-E54 E57-E65 E66-E68 Upon the foregoing papers, it is ordered that defendants' motions are determined as follows: This ~ction was brnught to recover damages for personal injuries and the wrongful death ofCarrielee Strother-Ross on June 28, 2014, following a fall on an interior staircase at the Burger King restaurant located at Jamaica Avenue and 169'h Street, Jamaica, New 1 1 of 5 [*FILED: 2] QUEENS COUNTY CLERK 11/29/2018 02:33 PM NYSCEF DOC. NO. 69 INDEX NO. 705199/2016 RECEIVED NYSCEF: 11/29/2018 York. Plaintiff commenGed an action in negligence against defendant, Powell Foods of 14041, LLC (Powell Foods), "an affiliate company of Odyssey Foods, the owner of the subject Burger King franchise; and defendant, Burger King, the franchisee/landlord. In March 2017, defendants moved for dismissal of the complaint as against Burger King, pursuant to CPLR 3211 (a) (1). By decision dated April 12, 2017, said motion was denied. In December 2017, defendants moved for leave to subpoena and depose a non-party, which motion was "denied without prejudice and with leave to renew" on January 18, 2018 on procedural grounds. Defendants now move for leave to renew both said decisions, pursuant to CPLR 2221 (e). Defendants also move for summary judgment, pursuant to CPLR 3212, seeking dismissal of the complaint. Plaintiff opposes the two dismissal motions. A motion for leave to renew must be based upon "new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the ;:rior determination" (CPLR 2221 [e] [2]; see Schwartz v Schwartz, 153 AD3d 953 [2d Dept. 2017]). Defendants' motion for leave to renew and for dismissal of the complaint, pursuant to CPLR 3211 (a) (1 ), "a defense founded upon documentary evidence," is denied. The court previously determined that the original motion was denied as "untimely." As such, said defense has been waived (see 3211 [a] [ l]; Skywest, Inc. v Ground Handling, Inc., 150 AD3d 922 [2d Dept 2017]; Portilla v Law Offs. ofArcia & Flanagan, 125 Ad3d 956 [2d Dept 2.015]), and renewal is unavailable. Had this motion been timely made, it would still have been unsuccessful. A motion to dismiss pursuantto CPLR 3211 (a) (1) requires "documentary evidence," i.e., a paper that is unambiguous, authent;c, and essentially undeniable (see Fontanetta v John Doe 1, 73 AD3d 78 [2d Dept 201 O], which "utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. ofNY, 98 NY2d 314, 326 [2002]; see Coz:nty of Westchester v Unity Mechanical Corp., 2018 NY Slip Op. 06879 [2d Dept 2018]). "The deposition testimony relied upon by defendants in support of this ... motion does not coastitute 'documentary evidence' within the meaning of32 l l (a)(l )" (JP Morgan Chase Bank, NA. v Balliraj, 113 AD3d 821, 821 [2d Dept 2014]; see A.N., Etc. v Roman Catholic Diocese of Rockville Centre, 2018 NY Slip Op. 06872 [2d Dept 2018]; ' Attias v Costiera, 120 AD3d 1281 [2d Dept 2014]). Further, it would be an academic exercise for the court to consider treating this motion as one for summary judg:nent, as a separate motion for summary judgment has been made by defendants herein (Seq. 7). Consequently, defendants' motion (Seq. 5) to dismiss, pursuant to CPLR 3211 (a) (1), is denied. With regard to the motion (Seq. 6) seeking leave to renew the prior motion to depose the non-party, the requirement that a motion for leave to renew be based on new facts "is a 2 2 of 5 [*FILED: 3] QUEENS COUNTY CLERK 11/29/2018 02:33 PM NYSCEF DOC. NO. 69 INDEX NO. 705199/2016 RECEIVED NYSCEF: 11/29/2018 flexible one," and while tLe moving party may not have technically met the requirements for renewal, the court has di:ccretion, in the interests of justice, to consider such evidence (JRP Holding, Inc. v Pratt, 11: AD3d 823, 824 [2014]; see Matter ofServiss v Incorporated Vil. OfFloral Park, 164 AD~d 52 [2d Dept 2018]; In re Defendini, 142 AD3d 500 [2d Dept 2016]). The facts proffrred by movant in support of this motion, although not "newly discovered," were not determined on the prior motion. Consequently, as no opposition to renewal, or the ultimate relief requested, has been forthcoming, leave to renew such prior motion, and leave to subpoena and depose Tamara Bloom, the Chief Medical Examiner of Nassau County, is grantee!, upon notice to defendants of any such deposition. Defendants move 'for summary judgment (Seq. 7) dismissing plaintiffs complaint, pursuant to CPLR 3212, 'on the grounds that they have, prima facie, established that "the steps in question were no+ the proximate cause of plaintiffs accident." and that "defendants bear no liability for plai11.iff s alleged injuries as a matter of Jaw." Plaintiff opposes. "[T)he proponent Jfa summary judgment motion must make aprimafacie showing of entitlement to judgme; t as a matter of Jaw, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Ayotte v Gervasio, 81NY2d1062, 1063, citing Alvarez v Prospect Hos:,:ital, 68 NY2d 320, 324 [1986]; see Schmitt v Medford Kidney Center, 121AD3d1088 (~014]; Zapata v Buitriago, 107 AD3d 977 [2013)). On one party's motion for summary jud; :ment, the evidence should be liberally construed in a light most favorable to the nonmov6g party (see Boulos v Lerner-Harrington, 124 AD3d 709 [2015]; Farrell v Herzog, 123 AI:.3d 655 [2014]). Summary judgment "should not be granted where the facts are in dispute, V'here conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Collado v Jiacono, 126 AD3d 927 [2014]), citing Scott v Long Is. Power Auth., 294 AD2d 348, 348 [2002]; see Parietti-Fogarty v Fogarty, 141 AD3d 512 [2016]). Credibility issues regarding the circumstances of the subject incident require resolution by the t.rier of fact (see Bravo v Vargas, 113 AD3d 579 [2014]; Martin v Cartledge, 102 AD3d 841 [2013]), and the denial of summary judgment. "In a premises lia;Jility case, a defendant property owner who moves for summary judgment has the initial turden of making a prima facie showing that it neither created the alleged dangerous or dffective condition nor had actual or constructive notice of its ' . existence" (Burke v Unuaca, 163 AD3d 618, 618 [2d Dept 2018]). Such prima facie I showing of entitlement to judgment as a matter of law can also be established by demonstrating that the i: ;aintiff cannot identify the cause of his or her accident without engaging in speculation (~ee Touloupis v Sears, 155 AD3d 807 [2d Dept 2017]; Vojvodic v City ofNew York, 148 A(3d 1086 [2d Dept 2017]). Here, defendants contend that "plaintiff is i.;nable to identify the ?ause of her accident" without resorting to speculation. While me;·e speculation as to th'; cause of the fall, when many possible contrary causes are present, 3 3 of 5 [*FILED: 4] QUEENS COUNTY CLERK 11/29/2018 02:33 PM NYSCEF DOC. NO. 69 INDEX NO. 705199/2016 RECEIVED NYSCEF: 11/29/2018 is fatal to a cause of acticn (see Pasqualoni v Jacklou Corp., 2018 NY Slip Op. 06928 [2d Dept 2018]; Burns v Linc.en Street Realty, Inc., 2018 NY Slip Op. 06876 [2d Dept 2018]; Eisenstein v Block 5298, .~nc., 164 AD3d 1304 [2d Dept 2018]), in the case at bar, contrary to defendants' contention·, they failed to demonstrate "prima facie entitlement to judgment as a matter oflaw on the g';-ound that the (plaintiff) could not identify the cause of the injured plaintiffs fall" (Pajovic v~94-06 34'h Road Realty Co., LLC, 152 AD3d 781 [2d Dept 2017]). l "[T]hat a defective or dangerous condition was the proximate cause of an accident can be established in the absehce of direct evidence of causation and may be inferred from the facts and circumstances u'.lderlying the injury" (Buglione v Spagnoletti, 123 AD3d 867, 867 [2d Dept 2014]; see Sch,;eider Kings Hwy. Hosp. Ctr., 67 NY2d 743 [1986]). "Cases grounded on ci:'eumstan(al evidence require a showing of sufficient facts from which the negligence of the defend':lnt and the causation of the accident by that negligence can be reasonably inferred" (Sinion v Franklin Center for Rehabilitation & Nursing, Inc., 157 AD3d 738, 739 [2d Depc 2018] quoting Bettineschi v Healy Elec. Contr., Inc., 73 AD3d 1109, 1110 [2d Dept 2Cl0]). In such cases, plaintiff needn't positively exclude every different possible cause 0 or the fall, but must only prove that it was more likely or more reasonable that the fall wn caused by defendant's negligence than by some other agency (see Gayle v City ofNew Yori;, 92 NY2d 936 [1998]; Cross v Roberts, 162 AD3d 852 [2d Dept 2018]). v Here, defendants', evidence in support of their motion includes the deposition testimony of the daughter of the deceased, who was with her mother at the Burger King, but did not see the actual fa71; reference to at least one written statement by an employee of Burger King, and an "incident report" written by a manager at the scene, the content of which were described by Powel' Foods' deposition witness, but neither of which documents were submitted with the moticn papers; and a "CD of accident video" from the security camera at Burger King, clearly ('epicting the subject accident. Such evidence not only failed to eliminate triable issues of fact as to whether the stairs were a proximate cause of the accident, but bolstered plaintiffs c'iaims by, among other things, showing the staircase as the site of the accident; contradictir'5 defendants' employee's alleged assertion that the deceased was "running" up the stairs a:' the time of the fall; and marginalizing defendants' claim that the accident was "clearly ... 1·aused due to (the deceased's) misstep." The video; the failure to include the statement andt,ncident report; and the admission that the subject staircase was not renovated or changed sin· e the accident, considered along with plaintiffs expert's findings from his inspection of the'. staircase, demonstrating alleged defects and violations thereat, all ' that defendants failed to meet their prima facie burden for support the determinaticn summary judgment (see Tennett v Alleyne, 163 AD3d 754 [2d Dept 2018]; Cross v Roberts, 162 AD3d 852). As defFndants have failed to substantiate their prima facie burden in the first instance, it is unnece,sary to consider whether plaintiffs opposition papers are sufficient 4 J. 4 of 5 [*FILED: 5] QUEENS COUNTY CLERK 11/29/2018 02:33 PM NYSCEF DOC. NO. 69 INDEX NO. 705199/2016 RECEIVED NYSCEF: 11/29/2018 to raise a triable issue of fact (see Winegradv New York Univ. Med. Ctr., 64 NY2d 851 [1985]; D 'Augustina v B'Yan Auto Parts, Inc., 152 AD3d 658 [2d Dept 2017]; Uvaydov v Peart, 99 AD3d 891 [2c Dept 2012]). Consequently, defendants' motion for summary judgment is denied. C\.' Accordingly, the r.·.otions by defendants, made pursuant to CPLR 2221 ( e), for leave to renew the court's prior.decision, denying dismissal of the complaint against Burger King on the basis of CPLR 3211 (a) (1), (Seq. 5), and for summary judgment dismissing the complaint against both d0fendants (Seq. 7), are denied. The motion by defendants, made pursuant to CPLR 2221 (ie), for leave to renew the court's prior decision, denying leave to depose a non-party witne~s (Seq. 6), is granted in all respects, ithout opposition. Dated: November17" 2018 ., 1 FILED NOY 2 9 2018 COUNTY CLERK QUEENS COUNTY 5 5 of 5

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