McCoy v R&S Foods, Inc.

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McCoy v R&S Foods, Inc. 2018 NY Slip Op 34313(U) November 13, 2018 Supreme Court, Orange County Docket Number: Index No. EF005399-2016 Judge: Catherine M. Bartlett 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. EF005399-2016 FILED: ORANGE COUNTY CLERK 11/13/2018 04:36 PM NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/13/2018 SUPREME COURT-STATE OF NEW YORK IAS PART-ORANGE COUNTY Present: HON. CATHERINE M. BARTLETT, A.J.S.C. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE -------------------------------------------------------------------x ROBERT McCOY, To commence the statutory time period for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. . Plaintiff, -against- R&S FOODS, INC. and WENDCENTRAL, CORP., Defendants. --------------------------------------------. ------------x Index No. EF005399-2016 Motion Date: August 27, 2018 The following papers numbered 1 to 7 were read on the motion of Defendant Wendcentral, Corp. for summary judgment: Notice of Motion - Affirmation/ Exhibits -Affidavit - Expert Affidavit/ Exhibit ........ 1-4 Affirmation in Opposition I Exhibits - Affidavit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6 Reply Affirmation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Upon the foregoing papers it is ORDERED that the motion is disposed ofas follows: The Pleadin&s In September of 2016, Plaintiff Robert McCoy commenced this action to recover for personal injuries allegedly sustained in a fall on the premises of the Wendy's restaurant in Middletown, New York on May 5, 2015. The Complaint alleges that the parking lot at the front of the restaurant was the situs of the accident. The Complaint further alleges that Defendants were negligent "in, among other l Filed in Orange County [* 1] 11/13/2018 04:36:57 PM $0.00 1 6 Bk:of 5121 Pg: 107 Index:# EF005399-2016 Clerk: EB FILED: ORANGE COUNTY CLERK 11/13/2018 04:36 PM NYSCEF DOC. NO. 45 INDEX NO. EF005399-2016 RECEIVED NYSCEF: 11/13/2018 fuings, allowing, causing and/or pennitting dangerous, hazardous, slippery and/or unsafe conditions to exist on the aforesaid premises." The Verified Bill of Particulars further alleges that Defendants were negligent inter alia: in creating a hole; in causing a hole; in failing to fix the hole; in failing to warn; in failing to use proper caution tape or orange cones to warn o( tripping hazards; in failing to provide adequate lighting. Plaintiff on June 5, 2017 swore in an affidavit that he was "caused to trip and fall violently to the ground due to the hole in the parking lot." However, Plaintiff's accident had nothing whatsoever to do with any hole. Wendy's surveillance video demonstrates that the Plaintiff in fact fell as he was exiting from the restaurant and stepping from the level of the sidewalk over the curb down to the level of the parking lot, and Plaintiff so testified at his deposition on November 1, 2017. Nevertheless, on April 12, 2018, Plaintiff filed a Note oflssue and Certificate of Readiness without ever amending his Bill of Particulars. What the Bill of Particulars does not allege - so far as concerns the present motion- is either (1) that the sidewalk, the curb or the exit from the restaurant were in any way dangerous or defective, or (2) that Plaintiffs fall occurred due to optical confusion. 2 [* 2] 2 of 6 FILED: ORANGE COUNTY CLERK 11/13/2018 04:36 PM NYSCEF DOC. NO. 45 INDEX NO. EF005399-2016 RECEIVED NYSCEF: 11/13/2018 The Motion For Summa:r:y Judgment A. The Legal Standards Governing Summary Judgment "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985). ''[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings." Foster v. Herbert S/epoy Corp., 76 AD3d 210,214 (2d Dept. 2010) (citing Alvarez v. Prospect Hospital, 68 NY2d 320, 325, and Winegrad v. New York University Medical Center, supra). If the movant establishes prima facie entitlement to summary judgment, the opponent, to defeat the motion, "must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim." Zuckerman v. City of New York, 49 NY2d 557,562 (1980). "[A] plaintiff cannot defeat an otherwise proper motion for swnmary judgment by asserting, for the first time in opposition to the motion, a new theory of liability that was not pleaded in the complaint or bill of particulars (see Michel v. Long Is. Jewish Med. Ctr., 125 AD3d 945, 946... ; Metzger v. Wyndham Homes, Inc., 81 AD3d 795, 796 ... ; Dolan v. Halpern, 73 AD3d 1117, 1119... ; Golubov v. Wolfson, 22 AD3d 635, 636 ... )." Troia v. City ofNew York, 162 AD3d 1089, 1092 (2d Dept. 2018). See also, Mazurek v. Schoppmann, 159 AD3d 814,815 (2d Dept. 2018); Harrington v. City o[New York, 6 AD3d 662,663 (2d Dept. 2004); Araujo v. Brooklyn Martial Arts Academy, 304 AD2d 779, 780 (2d Dept. 2003). 3 [* 3] 3 of 6 FILED: ORANGE COUNTY CLERK 11/13/2018 04:36 PM NYSCEF DOC. NO. 45 B. INDEX NO. EF005399-2016 RECEIVED NYSCEF: 11/13/2018 Defendant Established Prima Facie Entitlement To Summary Judgment Defendant established via expert affidavit, via the deposition testimony of the Building Inspector of the Town of Wallkill, and via the deposition testimony ofits own representative that the curb was not defective, hazardous or dangerous; that the situs of the accident was in compliance with the New York State Building Code and the Department of Transportation Code; that there was no tripping hazard that could have contributed to Plaintiff's accident; and that Defendant had no notice of any defective condition. Since "the prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings" (Foster v. Herbert S/epoy Corp., supra, 16 AD3d at 214), Defendant was not required in the first instance to address any other matter to establish its prima facie entitlement to judgment as a matter of law. C. Plaintiff In Opposition Failed To Demonstrate The Existence Of Any Material Issue Of Fact Plaintiff, in opposition to the motion, failed to adduce any proof via expert affidavit or otherwise to controvert Defendant's demonstration ofprima facie entitlement to summary judgment. Instead, Plaintiff improperly claimed for the first time in opposition to Defendant's motion that his fall was the product of optical confusion. Consistent with the legal principles set forth hereinabove, courts have explicitly held that a theory of optical confusion which is not alleged in the complaint or bill of particulars may not be raised for the first time in opposition to a motion for summary judgment. See, Siegfried v. West 63 Empire Associates, LLC, 145 AD3d 456,457 (I51 Dept. 2016); Pinkham v. West Elm, 142 AD3d 477,478 (!51 Dept. 2016). 4 [* 4] 4 of 6 FILED: ORANGE COUNTY CLERK 11/13/2018 04:36 PM NYSCEF DOC. NO. 45 INDEX NO. EF005399-2016 RECEIVED NYSCEF: 11/13/2018 Even if this Court were to reach the issue, Plaintiffs evidence is palpably insufficient to raise any genuine triable issue of fact. First, Plaintiff submits no expert affidavit but only the incompetent opinion of his attorney. .Second, the photographs proffered by Plaintiff plainly show a contrast in color between the concrete sidewalk and the blacktop parking lot. Third, Plaintiff was well aware of the existence of the elevation differential, having within minutes before the fall traversed the curb without incident on his way into the restaurant. Fourth, Plaintiffs averment in his summary judgment affidavit that darkness contributed to his accident flies in the face of his deposition testimony that he had no difficulty seeing as he walked from the parking lot into the restaurant. Fifth, there is no indication in Plaintiff's deposition testimony that his fall was the product of optical confusion. He knew the curb was there and attributed his accident to "a mistake." Plaintiff's summary judgment affidavit, wherein the theory of optical confusion was belatedly raised for the first time, was patently crafted to avoid the effect of his deposition testimony. To consider that affidavit, when Defendant had no notice either from the pleadings or from Plaintiffs deposition testimony of the need to adduce evidence relative to optical confusion, would gravely prejudice the defense. The Court notes, in any event, that summary judgment of dismissal has been granted in single-step riser cases akin to the case at bar where the circumstances - e.g., contrasting surfaces, compliance with code requirements, prior familiarity with the premises and/or a previous traversal of the step in question - compelled the conclusion that the step was not inherently dangerous and the plaintiff was or should have been aware of the elevation differential. See, e.g., Fishelson v. Kramer Properties, LLC, 133 AD3d 706, 706-708 5 [* 5] 5 of 6 INDEX NO. EF005399-2016 FILED: ORANGE COUNTY CLERK 11/13/2018 04:36 PM NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/13/2018 (2d Dept. 2015); Nelson v. 40~01 Northern Boulevard Corp., 95 AD3d 851,852 (2d Dept. 2012); Tyz v. First Street Holding Company, Inc., 78 AD3d 818, 819 (2d Dept. 2010). It is therefore ORDERED, that the motion of Defendant Wendcentral, Corp. for summary judgment is granted, and the Complaint is dismissed. The foregoing constitutes the decision and order of this Court. _JQ, Dated: November 2018 Goshen, New York ENTER HON. CATHERINE M. BARTLETT, A.J.S.C. HON.C.M.BARTlETT JUDGE NY STATE COURT OF CLAIMS ACTING SUPREME COURT JUSTICE 6 [* 6] 6 of 6

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