Santiago v Post Rd. Assoc., LLC

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Santiago v Post Rd. Assoc., LLC 2019 NY Slip Op 34806(U) June 28, 2019 Supreme Court, Westchester County Docket Number: Index No. 50864/2017 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 07/03/2019 03:49 PM NYSCEF DOC. NO. 195 INDEX NO. 50864/2017 RECEIVED NYSCEF: 07/03/2019 0 :To commence the statutory time for appeals as of right {CPLR (CPLR 5513[a]), you are advised to serve a copy of this order, with notice all parties. of entry, upon all ____________ SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME COUNTY COUNTY OF WESTCHESTER. WESTCHESTER PRESENT: PRESENT: HON. HON. SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. -----------------------------------------------------------------x KIMBERLY KIMBERLY SANTIAGO SANTIAGO , Plaintiff, Plaintiff, t x -against-againstPOST ROAD ROAD ASSOCIATES ASSOCIATES POST CONTRACTING CORP., CORP ., CONTRACTING ', LLC and DECISION DECISION & ORDER ORDER Index No. 50864/2017 50864/2017 Index Motion Sequence Sequence 5 Motion UNICORN UNICORN Defendants. Defendants. ______________________________________________________ ------------------------x --------------------x UNICORN UNICORN CONTRACTING CONTRACTING CORP., CORP., Third-Party Plaintiffs, Plaintiffs, Third-Party -against-againstWHITE PLAINS PLAINS HOSPITAL HOSPITAL, WHITE ' Defendant. Defendant. ______________________________________________________________________________ x ---------------------x The following following papers papers were were received received and considered considered in connection connection with the The defendants' motion motion for for summary summary judgment: judgment: defendants' l_l I\ l\\ L Notice of of Motion/Affirmation/Affidavits(3)/Exhibits Motion/Affirmation/Affidavits(3)/Exhibits A-S A-S Notice Memorandum of of Law law Memorandum Affirmation Affirmation in Opposition/Exhibits Opposition/Exhibits A-F A-F Memorandum of law in Opposition Memorandum of Law Opposition Affidavit Affidavit in Opposition Opposition Reply Affirmation Affirmation Reply 1-24 25 26-32 26-32 33 34 35 Factual Factual and Procedural Procedural Background Background The The plaintiff, plaintiff, Kimberly Kimberly Santiago Santiago ("Santiago") ("Santiago") commenced commenced this this action action by filing filing a summons and complaint complaint on January January 20, 20,2017, recover monetary monetary damages damages for for a trip summons 2017, to recover , and " fall accident accident that that occurred occurred on August August 2, 2016, 2016, on the the interior interior staircase staircase of 101 East East Post Post 1 of 5 FILED: WESTCHESTER COUNTY CLERK 07/03/2019 03:49 PM NYSCEF DOC. NO. 195 INDEX NO. 50864/2017 RECEIVED NYSCEF: 07/03/2019 Plains, New New York. The defendant, Post Road Road Associates, ("Post Road"), Road, White White Plains, York. The defendant, Post Associates, LLC ("Post Unicorn Contracting Contracting Corp. ("Unicorn") ("Unicorn") both both commenced commenced a third-party third-party and the defendant, defendant, Unicorn action against the third-party third-party defendant, defendant, White White Plains Plains Hospital Hospital Medical Medical Center Center ("WPH"). ("WPH"). action against of the accident, Santiago Santiago was employee at White Plains Hospital. Hospital. On the day day of the accident, was an employee White Plains She testified testified that worked on the third floor floor of of the building where where the accident occurred occurred the building the accident She that she worked landing of the second she was going going down down the stairs. stairs. She and slipped slipped on the landing second floor floor as she testified that was told that that a metal metal bracket bracket caused caused her her to trip and fall. testified that she she was Unicorn now now moves moves for summary dismiss the complaint, complaint, pursuant pursuant to Unicorn summary judgment judgment to dismiss CPLR arguing that contracting involvement involvement with Premises ended ended in June June 2016 2016 C PLR 3212, arguing that its contracting with the Premises the time time of Santiago's Santiago's accident construction work been completed. completed. Unicorn Unicorn and at the accident the construction work had been asserts that at the time time of accident it did not not control, control, operate, manage, or have have anything anything asserts that of the the accident operate, manage, to do with the subject subject property. property. Unicorn Unicorn also contends that that it is entitled entitled to contractual contractual also contends indemnification from from WPH WPH because because it was was an agent of Post Post Road, Road, WPH responsible WPH was was responsible indemnification agent of for service within within the hospital, including including the the interior interior staircase staircase and Santiago Santiago for the the janitorial janitorial service the hospital, alleges she tripped and fell over over a transient condition. alleges she tripped transient condition. Santiago, by her attorney, argues that Unicorn has failed failed to make make a In opposition, opposition, Santiago, attorney, argues that Unicorn prima facie showing showing of of entitlement that it did not create prima facie entitlement as it has not not shown shown that create and/or and/or have have notice of condition and it did not show when the was last last cleaned cleaned nor of the condition show when the staircase staircase was notice inspected. Santiago Santiago further argues that metal hinge hinge caused caused her her to fall and she she saw saw inspected. further argues that a metal workers in the staircase prior to her fall and the staircase was was in a generally dirty condition. condition. workers staircase prior the staircase generally dirty Santiago also asserts that that the the witness Steven Giamundo Giamundo cannot cannot establish prima facie facie Santiago also asserts witness Steven establish a prima case , as he does know when area was was last cleaned cleaned and inspected inspected and he was was not case does not know when the area ' 2 of 5 FILED: WESTCHESTER COUNTY CLERK 07/03/2019 03:49 PM NYSCEF DOC. NO. 195 INDEX NO. 50864/2017 RECEIVED NYSCEF: 07/03/2019 present on the the morning morning of of the accident. accident. Santiago Santiago also also argues argues that that Unicorn Unicorn is not entitled entitled present summary judgment, because the the lease lease agreement agreement states states that that the landlord landlord or its agent agent to summary judgment, because responsible for for the the common common areas areas of of the the building, building, which which would would include include the the staircase. staircase. is responsible Discussion Discussion party on a motion motion for for summary summary judgment must assemble assemble affirmative affirmative proof proof to A party judgment must establish his entitlement entitlement to judgment judgment as a matter matter of of law law (see Zuckerman Zuckerman v City City of of N. Y., Y, 49 establish NY2d 557 557 [1980)). [1980]). "[TJhe "[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 tendering sufficient sufficient evidence evidence facie judgment as a matter demonstrate the absence absence of of any any material material issues issues of of fact" fact" (see (see Alvarez Prospect Hosp., Hasp., Alvarez v Prospect to demonstrate [1986]). Only Only when when such such a showing showing has been been made made must must the the opposing opposing 68 NY2d 320, 324 [19861). party set set forth forth evidentiary evidentiary proof proof establishing establishing the existence existence of of a material material issue issue of of fact fact (see party Winegrad v New York Univ. Med. Ctr., 64 NY2d NY2d 851,853 851,853 [19851) [1985]) and the burden burden shifts shifts e.g. WinegradvNew party opposing opposing the motion, motion, who who must must then then show show the the existence existence of of material material issues issues of of to the party fact by producing producing evidentiary evidentiary proof proof in admissible admissible form, form, in support support of of their their position position (/d.). (ld.). fact impose liability liability upon upon a defendant defendant in a slip-and-fall slip-and-fall case, case, a plaintiff plaintiff has to put put forth forth To impose evidence showing showing the the existence existence of of a dangerous dangerous or defective defective condition condition and a defendant defendant evidence moving for for summary summary judgment initial burden burden of of establishing, establishing, prima prima facie, facie, that that it moving judgment has the initial neither created created the the dangerous dangerous condition condition nor had actual actual or constructive constructive notice notice of its neither existence for for a sufficient sufficient length length of of time time to discover discover and remedy remedy it, (see Davis Davis v Sutton, Sutton, 136 existence AD 3d @ 732-733; 732-733; Sawicki Sawicki v GameStop GameStop Corp., 106 AD3d AD3d 979; Armijos Armijos v. v. Vrettos Vrettos Realty Realty AD3d@ Corp., 106 AD3d AD3d 847; Freiser Freiser v Stop Stop & Shop Shop Supermarket Supermarket Co., LLC, 84 A.D.3d A.D.3d 1307, 1307, 1308). "To constitute constitute constructive constructive notice, notice, a defect defect must must be visible visible and apparent apparent and it must must 1308). , ' 3 of 5 FILED: WESTCHESTER COUNTY CLERK 07/03/2019 03:49INDEX PM NYSCEF DOC. NO. 195 NO. 50864/2017 RECEIVED NYSCEF: 07/03/2019 exist sufficient length time prior exist for a sufficient length of time prior to the accident accident to permit permit defendant's defendant's employees employees discover and remedy remedy it" (Kane (Kane v Peter Peter M. Moore Moore Const. Canst. Co., Inc., 145 AD3d AD3d 864 [2d to discover Dept 2016]). Dept 2016]). case, there evidence that anyone, including including Santiago Santiago observed observed the In this this case, there is no evidence that anyone, metal hinge hinge prior prior to her her accident. accident. It "could "could have have been deposited deposited there only minutes minutes or metal there only seconds before the accident accident and any other other conclusion conclusion would would be pure pure speculation" speculation" (see seconds before Gordon v American Museum of of Natural Natural History, History, 67 NY2d 836 [1986]). [1986]). Gordon American Museum addition, the the affidavits affidavits and evidence evidence submitted submitted show that WPH WPH took took full In addition, show that possession of the premises premises at least least one one month month prior prior to Santiago's Santiago's accident pursuant possession accident and pursuant to the lease, lease, was responsible for, among among other other things, cleaning, repairs, repairs, and maintenance maintenance was responsible things, cleaning, inside the building, building, including including the interior interior stairwells. stairwells. Further, Further, Unicorn Unicorn established established that inside that it completed work work prior prior to Santiago's Santiago's accident accident and did not control, control, operate, manage, or have have completed operate, manage, anything time of the accident. anything to do with the Premises Premises at the time accident. Additionally, WPH acknowledges acknowledges that that it was possession and occupancy occupancy ofthe of the Additionally, WPH was in full possession Premises prior prior to Santiago's Santiago's accident accident on August that pursuant pursuant to the lease lease August 2,2016 2, 2016 and and that Premises agreement WPH was responsible for cleaning, repairs repairs and maintenance maintenance inside inside the agreement WPH was responsible for cleaning, building. building. Since the Court Court has already found that WPH is not liable liable and has dismissed dismissed the and has Since already found that WPH action Unicorn's third-party claims are also also dismissed. dismissed. action against against it, Unicorn's third-party claims Accordingly, Accordingly, it is ORDERED that that Unicorn's Unicorn's motion motion for summary granted; and it is ORDERED summary judgment judgment is granted; "'",im" (')Rni=Ri=n th:::it ::ill nRnl=Rl=n th",t ",II r.l:::iim~ :::inrl 'Inri 4 of 5 r.ross-claims dismissed. r:ross-c1aims aaainst aaainst Unicorn Unicorn are dismissed. FILED: WESTCHESTER COUNTY CLERK 07/03/2019 03:49 PM NYSCEF DOC. NO. 195 INDEX NO. 50864/2017 RECEIVED NYSCEF: 07/03/2019 The The foregoing foregoing shall shall constitute constitute the decision decision and order order of of the the Court. Court. Dated: White Plains, New New York Dated: White Plains, York June;;{~ 2019 June 2019 ~8: Cu« ClL« J) .- ~~ c.f2 D. WALKER, J.S.C. ON. SAM D. WALKER, J.S.C. 5 5 of 5

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