Nutt v Young Men's Christian Assoc. of Middletown, N.Y.

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Nutt v Young Men's Christian Assoc. of Middletown, N.Y. 2018 NY Slip Op 34181(U) December 5, 2018 Supreme Court, Orange County Docket Number: Index No. EF006928-2016 Judge: Sandra B. Sciortino 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. INDEX NO. EF006928-2016 FILED: ORANGE COUNTY CLERK 12/06/2018 12:06 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 12/06/2018 To commence the statutory time for appeals as of right (CPLR55l3 [a]), you areadvised to serve a copy of this order, withnotice of entry, upon ali parties. SUPREME COlJRT OF THE STATE OF NEW YORK COUNTY OF ORANGE -------------------------------------------------------------------X KAY NUTT, Plaintiffs, DECISION AND ORDER INDEXNO.: _EF006928-2Q16 Motion Dafo: 09/26/2018 .,.against.,. Sequence No. 1 YOUNG MEN'S CHRISTIAN ASSOCIATION OF MIDDLETOWN, NEW \'ORI( and YMCA OF MIDDLETOWN, INC.; Defendants. -------------------------------·-·•- ·------·- . X SCIORTINO, J. The following papers numbered 1 to 19 were read on this motion by defendants for ah order granting summary judgment dismissing the complaint: PAPERS . Notice of Motion I Affirmation (Campbell) I Exhibits A - F Affirmaticm in Opposition (Del Duco)/ Exhibits. 1 - ·9 ReplyAffirmatiop (Campbell) NUMBERED · l-8 .9 - 18 19 Upon the foregoing papers, the motion is denied. This matter arises outof a slip and fall accident which occurred on November i O? 2014, in a hallway inside defendants' YMCA facilityinl'viiddletown, New York. Plaintiff had participated inawater aerobics class aftheJacility's poolandwas returning to the women's locker room. After leaving the pool area, plaintiff took an elevator up one 'floor and walked down the hallway toward the locker room. Plaintiff aUeges that, .as she attempted to negoHate a set ofthree steps near the entrance to the locker room, she was caused t_o slip and fall by an accumulation of water at the top of the steps. Filed [* 1]in Orange County 12/06/2018 12:00:00 AM $0.00 1Bk:of 5 5121 Pg: 1634 Index:# EF006928-2016 Clerk: EB FILED: ORANGE COUNTY CLERK 12/06/2018 12:06 PM NYSCEF DOC. NO. 36 INDEX NO. EF006928-2016 RECEIVED NYSCEF: 12/06/2018 Plaintiff commenced the action by filing a Summons and Verified Complaint on October 12, 2016 .. Defendants served and filed an Answer dated oecember 1, 2016. Note oflssue was filed on March 20, 2018. At a conference.before the Coµrt on May 4, 2018, defendants,' time to move for summaryjudgment was extended to June 29,2018; The instant motion was timely filed on that dak l\1otion ·for Summary Judgment By Notice of Motion originally returnable on August 15, 2018 and adjourned to September •26, 2018, defendants seek .summary judgment··asserting that there are no triable issues of.fact. Defendants assert tha.tthe wateraccuim.ilatio"n at issue was incidental to the use ofthe pool and/or 'the women's locker room. Defehdahtsfurthercontend that thecomplaint shouldbedismissed on the ground that defendants did not create the subject condition and had neither .actual nor constructive notice thereof. In opposition, plaintiff asserts that defe11dants have_failed to satisfy their initial burden on the motion~ In the aJternadve, pJaintiff as~e.rt_s th~t ge11µine issues of maieri~l fact p_rec_lµde sununary · jt1dgment. Plaint_iff contends that;. bec~use the water which caused her Jan was not in an ~re~ immediately suriouridirig the pool but in ahallway on.another floor, the water accumulation cannot be satd to be incidenta.l to the .use of the pool,or the locker room .. Further, plaintiff contends that defendants failed fo .: make a primafac/e showing of.lack C>f constructive•notice, as they ,did nC>t submit any eyidence as to wfie11 the are~ in q1:1e.stion wa_s l~st inspected. F_inally, plaintiff argues tha_t defendants had.actual notice of a recurring hazardous condition, and, thus, as a matter oflaw, are chargeable with constructive notice of each reoccurrence of the condition. Plaintiff concludes that the motion should be denied .. In reply,.defenda.rits argue that plaintifrs claim ofconstructive notice necessarily fails as 2, [* 2] 2 of 5 FILED: ORANGE COUNTY CLERK 12/06/2018 12:06 PM NYSCEF DOC. NO. 36 INDEX NO. EF006928-2016 RECEIVED NYSCEF: 12/06/2018 plaintiff testified at her deposition that slle dicl not notice any water on the subject stairs as sh~ exhed the locker room and walked to the pool approximately 90 minutes before her accident. Defendants further contend thatthe evidence establishes at most that defendants had a general awareness that a dangerous •Condition may be present: Such evidence is insufficient to support a finding •that defendants had notice of a recurring con_dition. The Court has fully considered the submissions of the parties. Discussion "A party moving for.summary judgmeilfirttist make a primaJade showing of entitlement to judgmeritas a matter of law~ offering suffiderit evidence to demoristrateJhe absence ofany material issues offact" (Nash v. Port Wash: Union Free Schoo/Dist., 8JAD3d 136,146 [2d Dept201 l]), citilig Alvarez v Prospect Fiosp., 68 NY2d 320, 324 [1986]); . The function of the court on such a motion is issuefinding, and not issue determination (Sillman v. T'wenfieth Century-FoxFilm C()rp., 3 NY2d 395 [1957]), and the Court is obliged to drawaUreasonable inferences _ill favor ofthe nonmoving party (Rizzo v~ Linc,oln Di11er Corp:, 215AD2d 546 [2d Dept 1995]). Where there is any doubt about the existence of a 111aterial and friable issue of fact, summary judgment must not be granted (Anyanwu v. Johnson, 276 ADid 572,[2d Dept 2000]). in.the matter at bar, defendants made aprimafacie showing that they dici not have actual notice of the •condition alleged to have caused plaintiffs fall by submission of, inter a/ia, the deposition transcripts of plaintiff and three .of ~~fendants' employees. None of the transcripts confain any evidence that any employee saworwasnotified,ofthe alleged accumulatfori ofwater in the hallway outside the lo~ker ro()m on the date of the accident In opposition, plaintiff failed to raise .a triable issue of fact as t9 ~ctual notice. 3 [* 3] 3 of 5 FILED: ORANGE COUNTY CLERK 12/06/2018 12:06 PM NYSCEF DOC. NO. 36 INDEX NO. EF006928-2016 RECEIVED NYSCEF: 12/06/2018 'Ho:wever, on the issue ofconstructive .notice, defendants failed .to meet their prima facie burcien. "T9 meet its initial burden on the issue of lack of c:oristri.Ictive riottc:e, the defenciaritrmist offer some evidence as to when the area in question was fast cleaned or inspected relative to the time when the plaintiff fell" (Rodriguez v. Shop Rite Supermarkets, inc., 119 AD3d 923 [2d Dept '.?Ql4], quoting Birnbaum v; NewYorkRacing Assn_.,Jnc;, 57DAD3cf598 [2d Dept2008]). Defendants on the instant motion submittecl n.o ~vidence as to when the areawhere piai11t1fffeH wasfast inspected or cleaned. Defendants' reliance on-Schiano v. TGI Friday's, Inc., 205 AD2d 407 (1st Dept 1994), for the proposition that plaintiffs failure to notice water onthe subject steps 90 minutes prior to her ac:ciderit bars afinding of constructive notice is misplaced, In thatcase;the Court noted that there was .no allegation of an accumulation of water and no ·evidence that rain ·had fallen that evening~ Rather, the alleged causeofplaintiffsfall was an accumulation ofdew onawalkwayona humid summer night. The Schiano Court thus determined that this natural phenomenon did not c:oristitute ; a hazard giving rise fo.any duty onth.e part of the defendant. In the matter at bar, it is alleged that defendants negligently permitted an acctinililatlon of water to persist in a hallway on thefrpremises. The cited case IS dearly not analogous . .In any event, plaintiff in opposition raised triable issues of fact as to constructive notice. Specifically, plaintiff submitted the deposition transcript of Valerie Lalima, defendants' empfoyee. '.[he transcriptwasnotsubmitte dwiththe moving papers): Ms. Laliina testified that the area where plaintiff fell often became wet after pool cl~sses concluded and members returned to the locker rooms; .and that she personally alerted maintenance personnel iri the building to this recurring condition on mo.re ihan one occasion. From Ms.Lalima~s testimony raises a question or questions 4 [* 4] 4 of 5 FILED: ORANGE COUNTY CLERK 12/06/2018 12:06 PM NYSCEF DOC. NO. 36 INDEX NO. EF006928-2016 RECEIVED NYSCEF: 12/06/2018 of fact appropriate for jury consideration as to whether defendants had actual notice of a recurring condition in the area where plaintiff fell. "Even absent proof that a defendant has actual knowledge of the condition on the date of the accident, a defendant' s actual knowledge of the recurrent condition constitutes constructive notice of each specific recurrence' (Erikson v. JI.B. Realty Corp., 12 AD3d 344, 345 [2d Dept 2004]). Finally, defendants cannot prevail on their motion on the assertion that the accumulation of water was merely incidental to the use of the pool and/or locker room. It is undisputed that plaintiffs accident occurred in a hallway one floor above the level where the pool was located, approximately 50 feet down the hall from where plaintiff exited the elevator and at the top of three steps which led down to the level of the locker room. Cases cited by defendants involving surfaces which were regularly submerged in water or areas immediately surrounding a pool are not analogous. Plaintiff had clearly left the pool area and had not reached the level of the locker room. There is no evidence in the record to establish that water is necessarily incidental to the use of the pool and/or locker room. In light of the above, it is hereby ORDERED that defendants' motion is denied. The parties shall appear for settlement conference on January 10 2019 at 9: 15 a.m. The foregoing constitutes the Decision and Order of the Court. Dated: December 5, 2018 Goshen, New York HO . SANDRA B. SCIORTINO, J.S.C. TO: Counsel of Record VIANYSCEF 5 [* 5] 5 of 5

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