Ivory v East Third Corner, Inc.

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Ivory v East Third Corner, Inc. 2018 NY Slip Op 34367(U) September 30, 2018 Supreme Court, Westchester County Docket Number: Index No. 67029/2016 Judge: Sam D. Walker 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: WESTCHESTER COUNTY CLERK 10/05/2018 03:17 PM NYSCEF DOC. NO. 65 INDEX NO. 67029/2016 RECEIVED NYSCEF: 10/05/2018 commence the statutory statutory To commence time for for appeals appeals as of of right right time (CPLR 5513[a]), you are advised to serve serve a copy copy advised of this this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. of SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME COUNTY OF WESTCHESTER WESTCHESTER COUNTY PRESENT: HON. HON. SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. PRESENT: ----------------------------x -----------------------------------------------------------------------------J< CHYRISSE IVORY, IVORY, CHYRISSE DECISION & ORDER ORDER DECISION Plaintiff, Plaintiff, IndeJ<No. 67029/2016 Index No. 67029/2016 Motion Sequence Sequence 1 -againstMotion -againstEAST THIRD THIRD CORNER, CORNER, INC. D/B/A D/B/A RQ CONVENIENCE CONVENIENCE EAST STORE, CAPITAL CAPITAL EIGHT, EIGHT, LLC, PARAMOUNT PARAMOUNT PROPERTY PROPERTY STORE, REALTY AND PEPSI-COLA PEPSI-COLA BOTTLING BOTTLING COMPANY COMPANY OF REAL TY AND NEW NEW YORK YORK INC., Defendants. Defendants. ------------------x ------------------------------------------------------------------------------J< The following following papers papers were were read and considered considered in connection connection with the the defendant's defendant's The motion for for summary summary judgment: motion judgment: 1-10 11-13 11-13 Notice of Motion/Affirmation/Exhibits Motion/Affirmation/EJ<hibits A-H Notice Affirmation in Opposition/Exhibits Opposition/EJ<hibits A-B A-B Affirmation Affirmation in Opposition Opposition Affirmation Reply Affirmation/Exhibit Affirmation/EJ<hibit A Reply Reply Affirmation/Exhibit Affirmation/EJ<hibit A Reply 14 15 16 Procedural and Factual Factual Background Background Procedural The plaintiff, plaintiff, Chyrisse Chyrisse Ivory Ivory ("Ivory"), ("Ivory"), commenced commenced this this action action against againstthe defendants, The the defendants, seeking seeking damages damages for for injuries injuries she she allegedly allegedly sustained sustained on July July 6, 2016, 2016, when when she she slipped slipped water she alleges alleges was was on the the floor floor of of RQ Convenience Convenience Store. Store. The The def~ndant, defendant, and fell on water East Third Third Corner, Corner, Inc. d/b/a d/b/a RQ Convenience Convenience Store Store is the the operator operator of the the store store and the the East tenant of of the premises, premises, owned owned by the the defendant, defendant, Capital Capital Eight, Eight, LLC. Pepsi-Cola Pepsi-Cola Bottling Bottling tenant Company of New New York, Inc. {"Pepsi") ("Pepsi") is the the owner owner of a refrigerator refrigerator in the the store, store, which which Ivory Company [* 1] 1 of 5 FILED: WESTCHESTER COUNTY CLERK 10/05/2018 03:17 PM NYSCEF DOC. NO. 65 INDEX NO. 67029/2016 RECEIVED NYSCEF: 10/05/2018 alleges was was leaking leaking water water onto onto the the floor floor of the the convenience convenience store store and caused caused her her to slip alleges and fall. Pepsi judgment pursuant Pepsi now now moves moves for summary summary judgment pursuant to CPLR CPLR 3212, 3212, to dismiss dismiss the complaint as against against it. Pepsi Pepsi argues argues that that there there are no triable triable issues issues as to its freedom freedom from from complaint negligence negligence because because Ivory Ivory has only only her her own speculation speculation to support support her her claim claim that that Pepsi's Pepsi's refrigerator was was the the source source of of the alleged alleged water water on the floor. floor. Pepsi Pepsi asserts asserts that that its refrigerator refrigerator refrigerator could could not in fact fact have have been been the the source source of of the condition condition described described by the the plaintiff; and even if Ivory had slipped slipped on water water that that had leaked leaked from from the the refrigerator, refrigerator, Pepsi Pepsi plaintiff; did not create create the leak nor did it have have actual actual or constructive constructive notice notice of of the leak. In opposition, opposition, East East Third Third Corner, Corner, Inc., and Capital Capital Eight, LLC argue argue that that Pepsi's Pepsi's motion motion fails fails to establish establish that that it was was not negligent negligent in the installation, installation, maintenance, maintenance, and/or and/or repair of of its refrigerator, refrigerator, since since the parties' parties' testimony, testimony, viewed viewed in a light light most most favorable favorable to the repair non-moving parties, parties, raises raises triable triable issues issues of of fact fact as to whether whether Pepsi Pepsi created created or had actual actual non-moving notice notice of of the condition condition alleged alleged by the plaintiff. plaintiff. Those Those defendants defendants assert assert that that Pepsi Pepsi failed failed to submit submit relevant relevant testimony testimony from from the owner owner of of the the store, store, who who testified testified that that Pepsi's Pepsi's refrigerator refrigerator leaked, leaked, that that he had told a Pepsi Pepsi driver driver a9out about the leak, and that that he called called Pepsi's service service telephone telephone number number and reported reported the the leak. Pepsi's The defendants defendants further further assert assert that that their their cross cross claims claims for for contribution contribution and indemnity indemnity The should not be dismissed, dismissed, as Pepsi Pepsi entered entered into a written written agreement agreement expressly expressly stating stating that that should would service service and repair repair its refrigerator refrigerator without without any condition condition precedent. precedent. The The defendants defendants it would further argue argue that that Pepsi's Pepsi's witness witness admitted admitted that that Pepsi Pepsi was was responsible responsible for maintenance maintenance further repair of of the the refrigerator refrigerator and admitted admitted that that the the refrigerator refrigerator could could leak leak in the the manner manner and repair 2 [* 2] 2 of 5 ..:... FILED: WESTCHESTER COUNTY CLERK 10/05/2018 03:17 PM NYSCEF DOC. NO. 65 INDEX NO. 67029/2016 RECEIVED NYSCEF: 10/05/2018 described by the defendants' defendants' witnesses. The defendants defendants contend contend that described witnesses. The that the the opinion opinion by Pepsi's witness that the leak alleged could not have have come Pepsi's refrigerator refrigerator or could Pepsi's witness that the leak alleged could come from from Pepsi's have generated generated the the amount amount of water speculative and conclusory, conclusory, as there water alleged, alleged, is speculative there not have indication that Pepsi's witness inspected or has has any personal knowledge knowledge of of the is no indication that Pepsi's witness inspected any personal the the refrigerator condition condition of of the refrigerator and the opinion opinion is contradicted contradicted by his previous previous deposition deposition testimony, in which which he admitted refrigerator could leak in the manner manner alleged alleged by testimony, admitted that that the the refrigerator could leak the defendants. The plaintiff also opposed arguing that that it is obvious from the defendants. The plaintiff also opposed the motion, motion, arguing obvious from record that questions of of fact exist requiring requiring a jury's determination. record that questions fact exist jury's determination. support of of the motion, Pepsi Pepsi relies upon, inter inter alia, the plaintiff's plaintiff's deposition deposition In support the motion, transcript; deposition of Fadhle Alghiem, convenience store employee; the of Fadhle Alghiem, the the convenience store employee; transcript; the deposition deposition deposition and affidavit affidavit of Michael Michael Merritt, Merritt, director director of marketing marketing equipment; equipment; photos photos of the convenience store; store; and copies copies of the pleadings. pleadings. convenience viewing the light most most favorable non-moving party party Upon viewing the evidence evidence in a light favorable to the non-moving (Pearson AD3d 895, 895 [2d Dept (Pearson v Dix McBride, McBride, LLC, 63 AD3d Dept 2009]), 2009]), and upon upon bestowing bestowing the benefit of every every reasonable reasonable inference inference to that party (Rizzo v Lincoln Lincoln Diner benefit that party Diner Corp., 215 215 AD2d AD2d 546, 546 [2d Dept finds that that Pepsi failed to meet there 546,546 Dept 1995]), 1995]), the Court Court finds Pepsi has failed meet its burden burden and there issue of fact require a jury's are issue fact that that require jury's determination. determination. Discussion Discussion party on a motion motion for summary judgment must assemble assemble affirmative affirmative proof proof to judgment must A party for summary establish his entitlement entitlement to judgment matter of of law. (Zuckerman (Zuckerman v City City of of N. Y., Y., 49 establish judgment as a matter NY2d 557 [1980]). [1980]). "[T]he "[T]he proponent proponent of of a summary summary judgment motion must must make make a prima prima NY2d judgment motion facie showing showing of of entitlement entitlement to judgment matter of of law, tendering sufficient evidence evidence judgment as a matter tendering sufficient facie 3 3 [* 3] 3 of 5 ) . FILED: WESTCHESTER COUNTY CLERK 10/05/2018 03:17 PM NYSCEF DOC. NO. 65 INDEX NO. 67029/2016 RECEIVED NYSCEF: 10/05/2018 to demonstrate absence of material issues issues offact," (Alvarez v Prospect Prospect Hosp., Hasp., 68 demonstrate the absence of any material of fact," (Alvarez NY2d 320, 324 [1986]). [1986]). Only Only when when such a showing been made made must must the opposing opposing NY2d showing has been party set set forth evidentiary proof proof establishing establishing the of a material material issue issue of of fact. (See (See party forth evidentiary the existence existence of Winegrad v New New York Univ. Med. Ctr., 64 NY2d 851, 851,853 [1985]). The burden shifts e.g. Winegrad 853 [1985]). The burden shifts to the party opposing opposing the the motion motion to show existence of of material material issues issues of fact fact by the party show the existence producing evidentiary proof, in admissible admissible form, their position. position. producing evidentiary proof, form, in support support of of their In a slip-and-fall defendant moving for summary judgment has the the initial slip-and-fall case, case, a defendant moving for summary judgment burden of prima facie, that it neither neither created created the dangerous condition condition nor nor had burden of establishing, establishing, prima facie, that the dangerous actual or constructive constructive notice notice of existence for a sufficient length of time time to discover discover and actual of its existence sufficient length remedy it, ((Sawicki GameStop Corp., Corp., 106 AD3d Vrettos Realty Realty Corp., 106 remedy Sawicki v GameStop AD3d 979; Armijos Armijos v Vrettos AD3d Freiser v Stop Stop & Shop Shop Supermarket Supermarket Co., LLC, 84 AD3d 1307, 1308). 1308). AD3d 847, 847; Freiser AD3d 1307, Pepsi did not submit submit documentation documentation to show show that that it had no duty duty to inspect inspect the Here, Pepsi soda machine machine and that that it was only responsible responsible for repairs of of the machine. Pepsi Pepsi did not soda was only for the the repairs the machine. submit contract with its original motion and cannot cannot rely on a submission submission in opposition opposition submit the the contract original motion make its prim primaa facie required to inspect inspect the the machine machine regularly. regularly. to make facie case case as to whether whether is was was required Pepsi also submitted an affidavit from Michael Michael Merritt Merritt stating stating that that the refrigerator refrigerator Pepsi also submitted affidavit from could have leaked leaked that that much, much, but butthe plaintiffs deposition deposition contradicts contradicts Merritt's Merritt's affidavit. affidavit. could not have the plaintiffs The plaintiff was clear in her testimony she observed observed water coming from from the The plaintiff was clear testimony that that she water coming refrigerator all the way where she fell. Further, Further, Merritt's Merritt's affidavit speculative as to his refrigerator way to where affidavit is speculative determination that the the refrigerator refrigerator could could not have have leaked leaked so much much in one night. He does does one night. determination that provide a proper proper foundation knowledge of his assertions. assertions. These These are issues issues of not provide foundation for his knowledge fact also issues issues of fact as to exactly exactly how how much much water fact for for a jury jury to decide. decide. There There are also of fact water was was 4 [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 10/05/2018 03:17 PM NYSCEF DOC. NO. 65 INDEX NO. 67029/2016 RECEIVED NYSCEF: 10/05/2018 the floor floor and whether whether or not the the convenience convenience store store owner owner actually actually called called the the number number on the report a leak. Although Although Merritt Merritt states states that that Pepsi Pepsi did not receive receive any any requests requests to repair repair to report the machine, machine, either either prior prior to the the plaintiffs plaintiff's accident accident or subsequent subsequent to the the accident, accident, this this is the contradicted by the other other testimony testimony provided. provided. Therefore, Therefore, the the defendant defendant has not established established contradicted that it did not not create create the the dangerous dangerous condition condition or have have actual actual or constructive constructive notice notice of of the that condition. condition. Therefore, Pepsi Pepsi has not met its burden burden for for summary summary judgment, since there there are Therefore, judgment, since material issues issues of of fact. material Accordingly, it is Accordingly, ORDERED that that the the motion motion is denied; denied; ORDERED The parties parties are directed directed to appear appear before before the the Settlement Settlement Conference Conference Part Part on The November November 13, 2018 2018 at 9:15 9:15 a.m. · The foregoing foregoing constitutes constitutes the the Opinion, Opinion, Decision Decision and Order Order of of the the Court. Court. The Dated: White White Plains, Plains, New New York York Dated: September 30, 30,2018 September 2018 CuA. J, J-, ~ ~ SAM D. WALKER, WALKER, J.S.C. J.S.C. . SAM 5 [* 5] 5 of 5

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