Yates v Sears Holdings Mgt. Corp.

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Yates v Sears Holdings Mgt. Corp. 2018 NY Slip Op 34101(U) September 12, 2018 Supreme Court, Orange County Docket Number: Index No. EF002426/l7 Judge: Robert A. Onofry 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] ORANGE COUNTY CLERK 09/12/2018 11:33 AM INDEX NO. EF002426-2017 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 09/12/2018 SUPREME COURT-STATE OF NEW YORK IAS PART-ORANGE COUNTY Present: HON. ROBERT A. ONOFRY, A.J.S.C. SUPREMECOURT:ORANGECOUNTY ----- ---------------- .. ------------------------------.-------X MICHELLE YATES, Plaintiff, To commence the statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy ofthis order, with notice of entry, upon all parties. - again$t;.,, Index No. EF002426/l 7 SEARS HOLDINGS MANAGEMENT CORPORATION, Defendant. DECISION AND .ORDER Motion Date: August29~ 2018 - ------ ----------- --- ·------· -------------------------------X The following papers numbered 1 through 3 were read and considered on a motion by the Defendant, purst1antto CPLR 3025(b), for leave to amend the caption, and pursuant toCPLR 3212, for summary judgment dismissing the complaint. Notice of Motion- Thebaud J\ffirmatiori- ExhibitsA-H .................................................... 1.;3 Upon the foregoing papers,.itis hereby, ORDERED, that the motion is denied. Introduction The Plaintiff Michelle Yates commenced this action to recover damages allegedly arising from a trip and fall in a K-Mart store. The Defendant Sears Holdings Management Corppration moves to amend the caption to naine K-Mart Corporation as the sole defendantinthe case, and for summary judgment dismissing the complaint on the ground thatthe Plaintiff will be unable to prove her case; The motion is denied. l Filed in Orange County 09/12/2018 12:00:00 AM $0.00 1 9 Bk:of 5123 Pg: 1951 Index: # EF002426-2017 Clerk: EB [*FILED: 2] ORANGE COUNTY CLERK 09/12/2018 11:33 AM NYSCEF DOC. NO. 28 INDEX NO. EF002426-2017 RECEIVED NYSCEF: 09/12/2018 Factual/Proccclural Background In her complaint, the Plaintiff alleges that, on January 25, 2016, at approximately 11:00 a.m., she tripped andfelldue to a dangerous and defective condition existing in the Defendant's store~ to wit: the Defendant allowed a "small step ladder to exist at the end of the aisle causing the walkway to become dangerous." In her verified bill of particulars, the Plaintiff alleges, inter alia, that the Defendant, "failed to remove liquid and/or water and/or ladders in an area that the defendant knew or should have known was an area where customers would walk when entering and exiting the beauty aisle." At an examination before trial, the Plaintiff testified that she tripped and fell in the K- Mart in New Windsor near the stationery area (Motion, Exhibit E, pp. 45-46) She had been fo the store five to ten times before (T-45-47). She testified: I was walking down an aisle 12 and,Tknow I'm using my hands, made a right turn at an end cap ofthe aisle and there was a small ladder right at the end cap, like, a foot stool and my right foot caught it and I fell. I couldn't see it, you know, coming around -- there wasn't a cone or anything. I just tripped on it and. fell. (T-50-52). When asked if she also slipped on liquid, she testified: No. My foot hit the ladder. I know I was a little wet, my pants were a little wet. So there must have been a little water on the floor _but I did riot slip on the water. (T-52). The Plaintiff identified a "[s]maH stepstool ladder'' shown to her in a photograph as the same type of stepladder/stool she had tripped on (T-53). She did not recall seeing a stepladder/stool in the same place during prior visits (T-53--55). Prior to her accident, she did 2 2 of 9 [*FILED: 3] ORANGE COUNTY CLERK 09/12/2018 11:33 AM NYSCEF DOC. NO. 28 INDEX NO. EF002426-2017 RECEIVED NYSCEF: 09/12/2018 riot complain to any store personnel about stepladders/stools (T-56). She had not seen any stepladders/stools in the aisles on subsequent visits (T-60). After her accident, she spoke to an associate at the store who filled out an accident report (T~89). At an examination before trial, Robert A vezzano testified that he was an asset protection manager at the subject store on the date in question (Motion, Exhibit F). His job responsibilities inciuded theft resolution; safety programs; safety inspections; training employees on asset protection policies and procedures, and maintaining the physical security of the store (T-9). He monitored the store from a room with closed circuit televisions to deter theft, etc. (T-13). If he .. a: dangerous condition in the store, he would either correct it himself or contact observed . someone ollthe floor to correc:t that'condition (T-14). There were no employees who were specifically tasked with cleaning the aisles and looking for dangerous conditions (T-24). There were janitors (T-24). There was also a store manager(T-11). At one point on the day in question, he was called and told that the Plaintiff had been injured in the store (T~20). There were no cameras in the area of the health and beauty section where she fell (T-22). When he arrived at the accicientsite, the Plaintiff was on the floor, on her back (T-25). She complained her neck hurt(T.;25). The only people around her when he arrived were other K..:mart employees (T-26). There were around IO tol2 employees working at that time (T-27). He took one photograph of a spot of water on the floor (T-33). He would take photographs after an accident of anything that might have contributed to the accident (T-34). The water appeared to be "smudged," was black and brown in color, and appeared to contain some rock salt (T-58). He observed the writer after the Plaintiff had already been brought out by paramedics, which was after there had been multiple people in the area, including the 3 3 of 9 [*FILED: 4] ORANGE COUNTY CLERK 09/12/2018 11:33 AM NYSCEF DOC. NO. 28 INDEX NO. EF002426-2017 RECEIVED NYSCEF: 09/12/2018 paramedics, who had brought a wheeled cart in from outside (T-60). In general, he would note in the accident reportanything that might have contributed to an accident, suchwhatkind of shoes a person was wearing, the general conditions.of the floor; the weather, etc. (T-51 ). Avezzano identified a two-step stepladderin a photograph as the same type that was sold in the store (T-38). Occasionally employees would use them for work, although they were riot supposed to (T-38). Employees were provided with staircase-type ladders with raiHngs on the side (T-39, 57). If not damaged, stepladders used by employees would be sold (T-38). He had seen employees use the store stepladders once or twice in the four or five months he was at the store (T-39). He didn't remember seeing a stepladder/stool near the Plaintiff, and the Plaintiff did not mention a stepladder/stool fo him (T-41-43, 46). When he asked her how she fell, she told him that she wasn't sure (T-4 7). He did not hear whatthe Plaintiff said to the first responders (T-A7). He did not recall ifhe saw any stepladders/stools anywhere in the vicinity of where the Plaintiff fell {T.:.48). The Motion at Bar Based upon the foregoing, the Defendant moves to amend the caption to name K-Mart . . Corporatiqn as the sole defendant in the case, and for smnmary judgment dismissing the complaint on the ground that the Plaintiff will be unable to prove her case. In support of its motion, the Defendant submits an affirmation from counsel, Andrew Thebaud. The baud notes that the Plaintiff testified that she had visited the subject store at least 5 to 10 times prior to the alleged accident, butthat she'had never observed a stepladder/stool left unattended in the store aisles, had never observed an employee using such a stepladder/stool, and 4 4 of 9 [*FILED: 5] ORANGE COUNTY CLERK 09/12/2018 11:33 AM NYSCEF DOC. NO. 28 INDEX NO. EF002426-2017 RECEIVED NYSCEF: 09/12/2018 had never made a complaint about such a condition. Further, Thebaud notes, contrary to the allegations in her Bill of Particulars, the Plaintiff expressly denied slipping on any liquid. Thebaud notes that A vczzano, who investigated the accident, testified that he did not see a stepladder/stool at the accident site, and that the Plaintiff did not state that she had tripped over a stepladder/stool. Further, he notes, A vezzano testified that the stepladder/stool upon which the Plaintiff allegedly tripped was store merchandise. Thus, Thebaud asserts, although Avezzano testified that employees had "sparingly used the depicted stool for work-related reasons in the past,there was no repeated pattern of employees using merchandise to perform work related functions." Given such testimony, Thebaud argues, there is no evidence to support a finding that the Defendant created or otherwise had actual or constructive notice of the alleged condition at issue. Rather, he asserts, the record is devoid of any evidence to suggest that a K-Mart employee was using the stepladder/stool at issue and left it unattended. Indeed, he notes, the stepladder/stool was merchandise, and not solely in Defendant's possession. Thus, he asserts, it was "subjectto . being used and controlled by other customers on the incident date, perhaps within moments of Plaintiffs accident." In any event, he argues, the Plaintiff will be unable to establish that the alleged dangerous condition existed for a sufficient period of time to have permitted K-Martem ployees to have .· . . . remedied the condition. Finally, he asserts, Sears Holdings Management Corporation is not the proper defendant in this action~ Rather, the proper defendant is K-Mart Corporation. 5 5 of 9 [*FILED: 6] ORANGE COUNTY CLERK 09/12/2018 11:33 AM NYSCEF DOC. NO. 28 INDEX NO. EF002426-2017 RECEIVED NYSCEF: 09/12/2018 Discussion/Legal Analysis Aproperty owner has a duty to maintain his or her premises in a reasonably safe condition. Dow v. Hermes Realty, LLC, 155 A.D.3d 824 [2 nd Dept. 2017]. To impose liability on a property owner for a slip and fall or trip and fall on an alleged dangerous condition on property,.there must be evidence that the dangerous condition existed, and that the defendant . . either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time. Dow v. Hermes Realty, LLC, 155 A.D.3d 824 [2 nd Dept. 2017] . .A defendant who moves for summary judgment in a slip arid fall or trip and fall case has the initial burden of establishing, prima facie, that it neither created nor had actual or constructive notice of the alleged hazardous ·condition. Mai1darano v. PND, LLC, 157A.D.3d 664 [2 nd Dept. 2018]. To constitute constructive notice, a defect must be visible and apparentfor a sufficient length of time prior to the accidentto permit the defendant's employees to discover and remedy it. Mandarano v. PND, LLC; 15TA.D;3d 664 [2nd Dept. 2018]. Here, although the Plaintiff expressly denied that she slipped on any liquid, she did testify that she tripped and feH on a stepladder/stool that was left in an aisle atan end-cap. Thus, to demonstrate a prima facie erititlemerit to judgment as a matter of law1 the Defendant mu~t present evidence either thatthe alleged dangerous condition did not exist, or that, if it did, it lacked actual or constructive notice of the same. This burden was not met. First, to the extent that the Defendant's arguments might be read to be asserting such, Avezzan_o 'stestimony that he did not remember seeing a stepladder/stool in the area of the accident, and that the Plaintiff did not tell him that she tripped on the same at the time of the accident, does not demonstrate,primafacie, that a stepladder/stool was not present; even when 6 6 of 9 [*FILED: 7] ORANGE COUNTY CLERK 09/12/2018 11:33 AM NYSCEF DOC. NO. 28 INDEX NO. EF002426-2017 RECEIVED NYSCEF: 09/12/2018 considered in conjunction with the Plaintiffs inconsistenta liegations as to the nature of the. alleged dangerous condition at.issue. Rather, this p_reserits a question of fact for the jury. Similarly, Avezzano's testimony thatthe type of stepladder/stool at issue was merchandise available to shoppers; and not intended for use by employees, does not demonstrate, primafacie, that the Defendant did not create the alleged dangerous and defective condition at issue, i.e., that a customer, not an employee, leftthesteplad der/stool in the aisle,and that the Defendant did not have sufficient time to remedy the condition. This is particularly true in light of Avezzano's testimony that employees did in fact sometimes use such stepladders/stools for work. Finally, the Defendant did notdemonstratc,pNmafacie, thatit lacked constructive notice of the alleged dangerous condition. Avezzano did not testify that he was in charge of patrolling the store for dangerous conditions, or that he or any other einployee urider his supervision or direction did in factdo so on the day in question. Indeed, he testified that the store did not have employees specifically tasked with doirig so; Rather, the-gist ofAvezzano' s testimony is that he monitored the store from a room with closed circuit television cameras, primarily for theft and wrongdoing, butthat he would report and/or remedy any dangerous condition he observed. However, he testified, there was no camera monitoring the area where the Plaintiff allegedly tripped and fell. The Defendant otherwise presented no testimony or evidence demonstrating a lack of constructive notice of the alleged dangerous condition at issue. See e.g., Mandarano v. PND, LLC, 15TA.D.3d 664 [2nd Dept. 2Q18][defondants established their primafacie.entitlement to judgmentas a matter of law by submitting evidence ofiheir trash collecticm and disposal 7 7 of 9 [*FILED: 8] ORANGE COUNTY CLERK 09/12/2018 11:33 AM NYSCEF DOC. NO. 28 INDEX NO. EF002426-2017 RECEIVED NYSCEF: 09/12/2018 practices, deposition testimony regarding the routine cleaning ofthe sidewalk each morning, and deposition testimony from several witnesses who walkedthrough the area shortly before the plairitift's accident and did noi observe the conditicfo thaf allegedly caused his fall]. Thus,that branch of the motion which is for summary judgment dismissing the complaint is denied regardless of the lack of opposition papers. Dow v. Hermes Realty, LLC, 155 A.D.3d 824 [2 nd Dept. 2017]. As to the remaining branch ·ofthe motion, the Defendant offers nothing, otherthan the condusory, bare allegation ofits attorney,that K-Mart Corporation is the proper Defendant. Indeed, the Court notes, although this would seem merely logical, this issue was not raised in the Defendarit;s answer, although, in the complaint, the situs ot'the accident is expressly alleged to be a K-Mart store. Thus, .that branch of the motion is denied, with leave to renew. Obviously, this would appear a compelling.subject for a stipulation. Accordingly, and for the reasons cited herein, it is hereby; ORDERED, that the motion is denied; and it is further, ORDERED, thafthe parties are directed to, and shall, appear, through respective counsel, for a Pre-frial Conference on Wednesday, November 14,2018, at 9:15 a.m,, atthe Orange County Surrogate's Court House, 30 Park Place, Goshen, New York. Theforegoing constitutes the decision and order of the court. ENTER Dated: .September 12, 2018 Goshen, New York /JUA. 8 8 of 9 [*FILED: 9] ORANGE COUNTY CLERK 09/12/2018 11:33 AM NYSCEF DOC. NO. 28 TO: INDEX NO. EF002426-2017 RECEIVED NYSCEF: 09/12/2018 Mainetti, Mainetti & O'Connor, P.C. Attorney for Plaintiff Office & P.O. Address 365 Meadow A venue Newburgh, New York 102550 Barclay Damon LLP Attorney for Defendant Office & P.O. Address 80 State Street Albany, New York 12207 9 9 of 9

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