Lewis v Stanley Steemer Intl., Inc.

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Lewis v Stanley Steemer Intl., Inc. 2018 NY Slip Op 34391(U) September 30, 2018 Supreme Court, Westchester County Docket Number: Index No. 54019/2017 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 10/04/2018 10:18 AM NYSCEF DOC. NO. 44 INDEX NO. 54019/2017 RECEIVED NYSCEF: 10/04/2018 commence the the statutory statutory To commence time for for appeals appeals as of of right right time 5513[a]), you you are (CPLR 5513[a]), advised to to serve serve a copy copy advised of this this order, order, with with notice notice of of of entry, entry, upon upon all parties. parties. SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME COUNTY OF WESTCHESTER WESTCHESTER COUNTY PRESENT: HON. HON. SAM D. WALKER, WALKER, J.S.C. PRESENT: --------------------x -----------------------------------------------------------------------------x MARY LEWIS, lEWIS, MARY Plaintiff, Plaintiff, DECISION & & ORDER ORDER DECISION Index No. 54019/2017 54019/2017 Index -against-againstMotion Sequence Sequence 2 Motion STANLEY STANLEY STEEMER STEEMER INTERNATIONAL, INTERNATIONAL, INC., Defendant. Defendant. --------------------x ------------------------------------------------------------------------------x The following following papers papers were were read and considered considered in connection connection with the aboveaboveThe captioned matter: matter: captioned Notice of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-J Notice Affirmation Opposition/Exhibits A-C A-C Affirmation in Opposition/Exhibits Reply Affirmation/Exhibits Affirmation/Exhibits K-N Reply Affirmation in Further Further Opposition Opposition to Defendants Defendants New New Submission Submission Affirmation 1-12 13-16 13-16 17-21 22 Factual and a"nd Procedural Procedural Background Background Factual The plaintiff plaintiff commenced commenced this action action seeking seeking damages damages for for personal personal injuries injuries and loss The wages allegedly allegedly sustained sustained on November November 18, 2016, 2016, by the the plaintiff, plaintiff, Mary Mary Lewis lewis ("Lewis"), ("lewis"), wages seventy five five year year old woman, woman, when when she fell on her her kitchen kitchen floor. floor. a seventy Lewis lewis testified testified that that she she hired Stanley Stanley Steemer Steemer International, International, Inc. ("Stanley ("Stanley Steemer") Steemer") clean the the kitchen kitchen floor floor at her her residence: residence: On the the day day of of the the incident, incident, two two Stanley Stanley Steemer Steemer to clean employees, Delvauna Delvauna Brown Brown a/k/a a/k/a Ricky Ricky Bobby Bobby ("Brown") ("Brown") and Johnny Johnny Evans Evans ("Evans") ("Evans") employees, came to Lewis' lewis' residence. residence. They They began began setting setting up the the equipment equipment to clean clean the the floor. floor. Brown Brown came and Evans Evans testified testified that that they they placed placed safety safety cones cones near near the the truck, truck, a slip slip and fall stand stand up [* 1] 1 of 7 FILED: WESTCHESTER COUNTY CLERK 10/04/2018 10:18 AM NYSCEF DOC. NO. 44 INDEX NO. 54019/2017 RECEIVED NYSCEF: 10/04/2018 outside Lewis' Lewis' residence, residence, and slip and fall fall sticky sticky post-it post-it signs signs at the the entrances entrances to the the sign outside kitchen kitchen and at the the bottom bottom and top of all stairways stairways near near the area area that that was was to be cleaned. cleaned. As As part part of of the the process, process, the the employees employees had had to spray spray an alkaline alkaline solution solution on the the kitchen floor floor and Brown Brown sprayed sprayed the the entire entire kitchen kitchen floor floor with the the solution. solution. Lewis Lewis testified testified kitchen that that they they needed needed water water from from the the garden garden hose hose to clean clean the the floor, floor, but but the the water water had been been turned turned off off and someone someone had to go to the the basement basement to turn turn on the the valve valve from from the the inside. inside. Brown testified testified that that he went went to the the basement basement to attempt attempt to locate locate the the valve, valve, but but was was unable unable Brown came back back upstairs upstairs to let Lewis Lewis know. According According to the testimony, testimony, Lewis Lewis said to find it and came that she she would would show show them them where where the the valve valve was was and proceeded proceeded to walk walk on the the kitchen kitchen floor. floor. that Lewis testified testified that that she she took took a couple couple steps steps into the kitchen kitchen and opened opened the the door door to the the Lewis basement, turned, turned, took took a step step down down the stairs stairs and her other other foot foot just shot out out from from under under basement, just shot testified that that she she heard heard "be careful careful and then then landed landed on her butt butt on either either the the first first her. She testified step or the the second second step step down. down. Brown Brown and Evans Evans testified testified that that they they warned warned Lewis Lewis not to step come into the the kitchen kitchen because because Brown Brown had sprayed sprayed the the _solution solution on the the floor. floor. Lewis Lewis testified testified come that that no one one told her her not not to go into the kitchen. kitchen. Lewis testified testified that that she she slid herself herself on her behind behind to the the living living room, room, where where she she Lewis asked for for her her telephone telephone and called called her her daughter. daughter. Brown Brown and Evans Evans testified testified that that they they asked assisted her her to the living living room. Brown Brown and Evans Evans finished finished cleaning cleaning the the floor floor and requested requested assisted payment from from Lewis. Lewis. payment As a result result of of falling, falling, Lewis Lewis suffered suffered a severely severely comminuted comminuted irreducible irreducible left trimalleolar ankle ankle fracture fracture dislocation, dislocation, which which required required surgical surgical intervention. intervention. Lewis Lewis also also trimalleolar 2 [* 2] 2 of 7 FILED: WESTCHESTER COUNTY CLERK 10/04/2018 10:18 AM NYSCEF DOC. NO. 44 INDEX NO. 54019/2017 RECEIVED NYSCEF: 10/04/2018 claims that March 29, 2017, 2017, she she fell because because her her ankle ankle just gave way suffered a claims that on March just gave way and suffered subcapital hip fracture, impacted. left subcapital fracture, impacted. Issue was discovery completed completed and the defendant, defendant, Stanley Stanley Steemer Issue was joined, joined, discovery Steemer now moves judgment pursuant complaint against against moves for summary summary judgment pursuant to CPLR CPLR 3212, 3212, dismissing dismissing the complaint Stanley Steemer, Steemer, by its attorney, attorney, argues argues that that Lewis Lewis cannot cannot make make out a prima it. Stanley prima facie facie case case of negligence, negligence, even even if she slipped floor, since of slipped on the wet wet floor, since it was was an open open and obvious obvious condition which was aware aware of at the time of her her slip and therefore, Stanley Steemer Steemer condition which she she was time of therefore, Stanley employees had no duty duty to warn. Stanley Steemer Steemer also also argues argues that Lewis' claim claim is barred barred employees warn. Stanley that Lewis' by contractual waiver signed employees commencing commencing the the work work contractual waiver signed by the plaintiff plaintiff prior prior to its employees which Lewis ordered. ordered. Stanley Stanley Steemer Steemer further contends that that Lewis Lewis cannot cannot make make out a which further contends cause of of prima facie case prima facie case of of negligence negligence regarding regarding her hip injury injury as there there is no proximate proximate cause that accident accident attributable attributable to Stanley Stanley Steemer Steemer and the timing of the injury occurred that timing of the hip injury occurred after after Lewis' doctor doctor cleared cleared her her of all restrictions restrictions and confirmed confirmed that ankle injury injury had fully that her her ankle fully Lewis' healed. healed. opposition, Lewis, by her her attorney attorney argues argues that that the slippery condition kitchen In opposition, the slippery condition of the the kitchen floor was not an open open and obvious obvious condition condition as a matter matter of law; that Lewis is not not barred floor was that Lewis barred purported contractual contractual waiver, waiver, which allegedly signed signed prior prior to Stanley Stanley Steemer Steemer by a purported which she allegedly summary employees work; that employees commencing commencing the the work; that Stanley Stanley Steemer Steemer is not entitled entitled to summary judgment based on proximate proximate cause; cause; and that that Stanley Stanley Steemer's negligence was judgment based Steemer's negligence was a proximate cause cause of Lewis' Lewis' subsequent subsequent hip injury. proximate Stanley Steemer's Steemer's attorney attorney reiterated reiterated the In reply, Stanley the defendant's defendant's arguments, arguments, contending that that Lewis Lewis knew knew that that the work commenced and and sat in the living room contending work had commenced 3 [* 3] 3 of 7 FILED: WESTCHESTER COUNTY CLERK 10/04/2018 10:18 AM NYSCEF DOC. NO. 44 INDEX NO. 54019/2017 RECEIVED NYSCEF: 10/04/2018 watching employees work. work. Also regard to Lewis' Lewis' hip injury, injury, Stanley watching the employees Also with regard Stanley Steemerfurther Steemer further argues that there overwhelming medical medical evidence show that Lewis' ankle that Lewis' ankle was was fully fully argues that there is overwhelming evidence to show healed and unrelated unrelated to her her hip injury. The defendant submitted additional documents The defendant submitted additional documents in healed support further opposition opposition to Stanley support of of its arguments. arguments. Lewis' Lewis' attorney attorney filed an affirmation affirmation in further Stanley Steemer's new new documents documents and arguments arguments made made in reply, contending must be Steemer's contending that that they they must disregarded because because evidence evidence cannot cannot be submitted submitted for first time disregarded for the the first time in a reply. support of the motion, motion, Stanley Stanley Steemer Steemer relies relies upon, upon, among among other other things, things, witness witness In support deposition transcripts, transcripts, an expert expert affirmation affirmation from Howard J. Luks, M.D., M.D., medical medical records, records, deposition from Howard the pleadings. pleadings. In opposition, a supporting supporting affidavit, affidavit, an attorney's attorney's affirmation affirmation and copies copies of the opposition, signed check Lewis copy of a signed Lewis relies relies upon upon her her affidavit, affidavit, an attorney's attorney's affirmation, affirmation, a copy check to Stanley Steemer Steemer and an affirmation affirmation from Samuel A. Hoisington, Hoisington, M.D. Stanley from Samuel Discussion Discussion settled that summary judgment drastic remedy should not be judgment is a drastic remedy which which should It is well well settled that summary there is any doubt granted granted where where there doubt about about the existence existence of of a triable triable issue issue of fact. (Andre (Andre v Pomeroy, 35 NY2d NY2d 361, 362 [1974]). [1974]). "It is nevertheless nevertheless an appropriate Pomeroy, appropriate tool tool to weed weed out WL 3734554, 3734554, 2NYSup 2NYSup 2006], 2006], citing, meritless meritless claims." claims." (Hamawi (Hamawi Deli, Inc. v Psaras, Psaras, 2006 2006 WL Lewis v. v. Desmond, Desmond, 187 AD2d Dept 1992]; 1992]; Gray Gray v Bankers Bankers Trust Trust Co. of AD2d 797 [3d Dept of Albany, Albany, N. Lewis A, AD2d 168 [3d Dept Dept 1981]). 1981]). A., 82 AD2d A party party seeking seeking summary bears the initial initial burden of affirmatively affirmatively summary judgment judgment bears burden of demonstrating its entitlement entitlement to summary summary judgment matter of of law. (Winegrad demonstrating judgment as a matter ( Winegrad v New New NY2d 851, 853 [1985]; [1985]; Alvarez Prospect Hospital, Hospital, 68 NY2d NY2d 320 York Univ. Med. Ctr., 64 NY2d Alvarez v Prospect [1986]). Failure Failure of of a moving moving party party to tender sufficient evidence evidence to demonstrate demonstrate as a matter matter [1986]). tender sufficient 4 4 [* 4] 4 of 7 FILED: WESTCHESTER COUNTY CLERK 10/04/2018 10:18 AM NYSCEF DOC. NO. 44 INDEX NO. 54019/2017 RECEIVED NYSCEF: 10/04/2018 absence of a material material issue issue of fact fact results results in a failure failure to tender prima facie of law the absence tender a prima facie entitlement to summary summary judgment requires denial denial of the motion, regardless regardless of the entitlement judgment and requires the motion, sufficiency opposing papers. papers. (McDonald (McDonald v Mauss, 38 AD3d Dept 2007]). 2007]). AD3d 727 727 [2d Dept sufficiency of the opposing prima facie made, however, however, the If a sufficient sufficient prima facie showing showing is made, the burden burden then then shifts shifts to the the non-moving party party to come forward with evidence non-moving come forward evidence to demonstrate demonstrate the the existence existence of a material issue issue of fact requiring a trial. (CPLR (CPLR 3212[b]); 3212[b]); see see also, Vermette Vermette v Kenworth fact requiring Kenworth material Truck Company, The parties' contentions are are viewed viewed Company, 68 NY2d NY2d 714, 717 [1986]). [1986]). The parties' competing competing contentions the light light most most favorable party opposing motion. (Marine (Marine Midland Midland Bank, in the favorable to the the party opposing the motion. Bank, N.A. Artie's Automatic Automatic Transmission AD2d 610 v Dino Dino & Artie's Transmission Co., 168 AD2d 610 [2d Dept Dept 1990]). 1990]). Bestowing Bestowing the benefit benefit of every every reasonable reasonable inference inference to the party party opposing opposing the AD2d 724, 726 motion motion (see Boyce Boyce v. v. Vasquez, Vasquez, 249 AD2d 726 [3d Dept., Dept., 1998]), 1998]), the record record reveals reveals that material material issues issues of fact that fact exist. In this this case, Stanley not create create the the condition condition of Stanley Steemer Steemer does does not argue argue that that it did not which Lewis complains, complains, but but asserts asserts that open and obvious obvious condition which that it was an open condition and its employees warned warned Lewis Lewis of the the dangerous dangerous condition. condition. However, However, proof proof that dangerous employees that a dangerous condition is open open and obvious obvious merely merely negates negates the defendant's defendant's obligation condition obligation to warn warn of the condition, but does does not not preclude preclude a finding finding of liability(see liability(see Gradwohl Gradwohl v Stop Stop & Shop Shop condition, Supermarket Co., LLC, 70 AD3d 636 [2d Dept Dept 2010]). 2010]). It only issue of fact Supermarket AD3d 634, 636 only raises raises an issue fact the plaintiff's plaintiff's comparative comparative negligence negligence (see Devlin Devlin v lkram, Ikram, 103 AD3d Dept as to the AD3d 682 682 [2d Dept 2013]). Also, "[t]he 2013]). Also, "[t)he issue issue of whether whether a dangerous dangerous condition condition is open obvious is fact open and obvious fact specific, and usually usually a question question of fact fact for for a jury resolve" (Id.). (ld.). jury to resolve" specific, 5 [* 5] 5 of 7 FILED: WESTCHESTER COUNTY CLERK 10/04/2018 10:18 AM NYSCEF DOC. NO. 44 INDEX NO. 54019/2017 RECEIVED NYSCEF: 10/04/2018 There are discrepancies discrepancies in the of the people who present at the There are the testimony testimony of the people who were were present that the scene the fall and the Court this record, scene of the Court cannot cannot determine determine on this record, as a matter matter of law, that wet upon which which Lewis Lewis slipped open and obvious obvious and and not not inherently inherently wet floor floor upon slipped and fell, was was open the hazard. Additionally, dangerous, dangerous, so as to relieve relieve Stanley Stanley Steemer Steemer of of its duty duty to warn warn of of the hazard. Additionally, there issues of fact fact as to whether whether warning warning signs signs were placed and whether Brown and were placed whether Brown there are issues Evans verbally verbally warned Lewis and tried prevent her her from entering the Evans warned Lewis tried to prevent from entering the kitchen. kitchen. With regard regard to signing release of of liability. liability. Lewis Lewis claims claims that that while while With signing a waiver waiver and release waiting her daughter daughter to arrive arrive after after she fell, Brown Brown handed handed Lewis Lewis her her checkbook, waiting for her checkbook, she she wrote check and he had her sign the that was wrote a check the iPad and that was the only only time time that that she she signed signed the iPad. Further, Further, Lewis Lewis specifically specifically testified testified that not sign the iPad. that she she did not the iPad when when the workers workers first any time before they Lewis also first arrived arrived or at any time before they started started working. working. Lewis also contends contends that that the signature being put forth Stanley Steemer signature that that is being forth by Stanley Steemer for for the waiver waiver is completely completely different different than the signature signature on the check check signed signed by Lewis. Therefore, Therefore, there there are issues of fact fact as to than issues of whether Lewis signed signed a waiver waiver absolving absolving Stanley Stanley Steemer Steemer of of liability. liability. whether Lewis Lewis also also submitted affirmation of of Dr. Hoisington, Hoisington, who who opines opines to a reasonable reasonable Lewis submitted the the affirmation degree of of medical medical certainty, certainty, with regard to Lewis' Lewis' ankle ankle and hip injury, injury, that ankle with regard that the the left ankle degree fracture suffered suffered by Lewis Lewis on November November 18, 2016, 2016, and the resulting resulting weakness of the joint joint fracture weakness of was a substantial causing Lewis' Lewis' left ankle ankle to give give way way on March March 29, 2017, 2017, which which was substantial factor factor in causing caused her to fall and fracture Hoisington fails precise in turn caused fracture her hip. While Whlle Dr. Hoisington fails to state state the precise language that statements contained contained therein were true under penalties penalties of of perjury, perjury, by language that the statements therein were true under referring to the the governing governing statute statute in the affirmation, which which contains contains the the phrase, phrase, under under referring the affirmation, penalties of of perjury, perjury, the affirmation was properly set (Jones v Schmitt, 7 Misc3d Misc3d 47 the affirmation was properly set forth forth (Jones penalties 6 [* 6] 6 of 7 FILED: WESTCHESTER COUNTY CLERK 10/04/2018 10:18 AM NYSCEF DOC. NO. 44 INDEX NO. 54019/2017 RECEIVED NYSCEF: 10/04/2018 [App. Term 2005]). This creates an issue issue of fact Lewis' weakened ankle Term 2005]). This creates fact as to whether whether Lewis' weakened ankle caused There is also whether Lewis was still caused her her to fall and injure injure her her hip. There also an issue issue as to whether Lewis was undergoing physical physical therapy physical therapy her ankle. undergoing therapy or had completed completed physical therapy on her ankle. The The defendant's attorney's attorney's affirmation affirmation also states Hoisington's affirmation more defendant's states that that Dr. Hoisington's affirmation creates creates more issues than resolves, thereby seemingly conceding issues of of fact fact to be issues than it resolves, thereby seemingly conceding that that there there are issues resolved. Therefore, issues of fact proximate cause cause of of fact as to proximate resolved. Therefore, the the Court Court finds finds that that there there are issues Lewis' hip injury. injury. Lewis' Accordingly, based based on the defendant's motion motion for summary judgment Accordingly, the foregoing, foregoing, the defendant's for summary judgment denied. The parties are directed appear before before the settlement settlement conference is denied. The parties directed to appear conference part, on November 13, 2018 2018 at 9:15 November 9:15 a.m. in Courtroom Courtroom 1600. The foregoing constitutes the Opinion, Decision and Order of the Court. The foregoing constitutes Opinion, Decision Order of Court. Dated: White White Plains, Plains, New New York Dated: York September 30, 3D, 2018 September 2018 J2. %J2.~ ~ HON. SAM WALKER, J.S.C. SAM D. WALKER, J.S.C. 7 [* 7] 7 of 7

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