Briggs v PF HV Mgt., Inc.
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Briggs v PF HV Mgt., Inc. 2020 NY Slip Op 34797(U) August 31, 2020 Supreme Court, Ulster County Docket Number: Index No. EF2018-1507 Judge: Lisa M. Fisher 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: 1] ULSTER COUNTY CLERK 08/31/2020 02:12 PM NYSCEF DOC. NO. 70 INDEX NO. EF2018-1507 RECEIVED NYSCEF: 08/31/2020 TATE OF EW YORK UPREME COURT TY JASON BRIGGS, DECISION & ORDER Plaintiff Index - against - Rn PF HV MA AGEMENT I C., PL ET Fl PL ET FITNESS, I C. , D fi ndants. PRESENT: HON. LI AM. FISHER: APPEARANCES: o.: o.: EF2018 -1507 55-18-1620 ESS and/or John G. Rusk, Esq. Coun ·el for Plaintiff cro s-movant Rusk, Wadlin, Heppner & Martuscello, LLP 255 Fai r Street, PO Box 3356 King ton ew York 12402 Matthew J. Kelly, Esq . ounselfor Defendants. movant Roemer Wallens Gold & Mineaux LLP 13 olumbia Circle, lbany, ew York 12203 Fl HER , J.: Plaintiff brought this premises liability action seeking to recover for personal injuries he ustained on March 28, 2018, when he was allegedly caused to slip and fall in the shower locker room at Defendants workout and gym facility known as Planet Fitness. Plaintiff contend he finished his workout and went into the locker room to shower as he normally did. He undressed and prepared to take a how r in the middle stall. He was barefoot. He testified he walked into the ho er area and as attempting to go into the middle (third) shower. He claims he slipped and fell in the area just before he got into the shower tall. He testified that after he fe ll he took everal photograph (three) of a puddle that was about one foot by two feet and approximately three to four feet from the shower shall. He believe the subject accident occurred just before 9:00 p.m. Plaintiff te tified that he did not ee th puddle before he fe ll and , when asked if he stepped in the puddle, he re ponded ··r would assume so.· When further qu stion d if he did not knO\ that he tepped into the puddle, he responded ·'I don' t know because I didn ' t ee the puddle, my eye Page 1 of 9 1 of 9 [*FILED: 2] ULSTER COUNTY CLERK 08/31/2020 02:12 PM NYSCEF DOC. NO. 70 INDEX NO. EF2018-1507 RECEIVED NYSCEF: 08/31/2020 wer looking where I was going. '· Plaintiff te tified that the surrounding ground near the puddle wa mostly wet all o er. After his fall , Plaintiff got dressed and went to the front counter to ad i e them of his injury. Defendant ' shift supervi or on duty that night wa John Taylor. The subject accident i ery alient to Mr. Ta !or becau e he was in the process of being promoted, had cla es that night after his shift at 9:30 p.m. , and remembers thi accident very well because ··not a lot of big things happen there." He testified to Defendants' policy requiring a walkthrough to clean and to inspect the premises e ery 20 to 30 minutes. Round were generally required at 8:30 p.m. 9:00 p.m ., and 9:30 p.m. Mr. Taylor recalled he did the 9:00 p.m. round because he wa leaving at 9:30 p.m. and he was responsible for the round thirty minutes prior to hi shift ending. He said rounds took about IO minutes and he had a habit of tarting hi walkthrough three minute before the time, which in thi ca e it would have been 8:57 p.m. He remembers performing the round and seeing Plaintiff duffel bag on the floor and hi locker open. He normally would have taken the duffel bag to the front desk per Defendants' polic on loose objects in the locker room, but he does not do that when there is a person showering because he assumes that it i their duffel bag. Mr. Taylor remembers dry mopping the shower area. He observed Plaintiff ·'getting into the ho er" in the third stall. He recalls that the hower wa on, the curtain was open, and Plaintiff wa de-robed and doing something on his phone, possibly texting. He pecifically knows who Plaintiff is because they have talked about sports and the fact that Plaintiff has a " Yankees" tattoo on hi houlder but wears Bo ton Red Sox t- hirts· both are ew England Patriot fan and they talk ports. However, he did not speak to the Plaintiff at the shower that night. Mr. Taylor returned to the front desk at approximately 9:07 p.m. - 9:08 p.m. when he signed the maintenance log. Mr. Taylor testified that at appro imately 9: 15 p.m. the Plaintiff came out and reported the subject accident. He rememb rs the time because he had to go at 9:30 p.m. to class and rem mbered thinking that thi would not take less than 15 minutes implying he would be late. Mr. Taylor went in and only saw water in front of the third shower stall that was consistent with a person coming out of the shower and drying off, not necessary a puddle. The other four shower stall and areas were dry. He took photograph and attached it to the incident report. Overall, Mr. Taylor does not believe that Plaintiff fell going into the shower but either coming out of the shower when wet or was injured somewhere else. He bases this opinion on the fact that Plaintiff told other Page 2 of 9 2 of 9 [*FILED: 3] ULSTER COUNTY CLERK 08/31/2020 02:12 PM NYSCEF DOC. NO. 70 INDEX NO. EF2018-1507 RECEIVED NYSCEF: 08/31/2020 employee different stories his observations of Plaintiff about to tep into the shower, and the timefrarne of his walkthrough, seeing Plaintiff about to step into the shower, and Plaintiff coming out. Defendants' general manager was Justin Milian, who worked that day but wa not at the facility at the time of the ubject accident. He te tified that the waJkthroughs were generally done every 30 minutes, but usually they would send someone in there every IO to 15 minutes to check. On the night of the subject accident, Mr. Milian testified both the 8:30 p.m. and 9:00 p.m. walkthroughs and forms were completed. He remembered receiving a call from Mr. Taylor about Plaintiff's fall at 9:00 p.m. Defendants testified there was a slip and fall caution ign in the shower area. There i photographic e idence of same. Plaintiff te tified he has seen that ign in the sho er area, but he did not remember if he saw it on the date of the subject accident or some other time. After Plaintiff went to the hospital , Defendants ' recovered the duffel bag that Mr. Taylor aw during hi 9:00 p.m. round in the locker room. That duffel bag was indeed Plaintiffs bag. Present Applications ow, Defendants move for summary judgment pursuant to CPLR R. 3212 on several grounds, including that they complied with building or maintenance codes and that the tile had the proper friction coefficient, to which Defendants contend Plaintiff's expert disclo ure and report fail to competently rebut. Defendant indicate that Plaintiff' bill of particular did not allege Defendant created the alleged condition or that Defendants had actual notice, and further that the did not have constructive notice of a dangerous condition considering that Defendants ' employee did a walkthrough and round "minutes" from when Plaintiff fell. Defendant also highlights that there were wet and slip/fall warnings in the locker room, particularly the hower area, which Plaintiff does not di pute. Defendants further argue they were not obliged to place down mat . In fact, when experimenting with mats in the past, they found that it actually made the surface more slippery. Plaintiff opposes the application but also cross-moves to strike Defendants· answer on poliation. The claim of spoliation argues that Defendants' improperly deleted the surveillance video of the lobby as well as the maintenance check sheets when litigation was reasonably foreseeabl . Plaintiff contends that this is a material fact that would pro e or dispro e Defendant hether employees performed the 9:00 p.m. round , and whether the subject accident occurred Page 3 of 9 3 of 9 [*FILED: 4] ULSTER COUNTY CLERK 08/31/2020 02:12 PM NYSCEF DOC. NO. 70 INDEX NO. EF2018-1507 RECEIVED NYSCEF: 08/31/2020 before or after the 9:00 p.m. round . Plaintiff also contends that Defendants did not test or have e idence of the friction coefficient, nor did they address the improper locker room/shower floor slope issue raised by Plaintiffs expert. Further, Plaintiff alleges that Defendants failed to put down mats to create a slip-resistance surface. Plaintiff' expert provide examples of what he alleged Defendants should have done. Defendants' submit a reply and opposition to the cross-motion arguing that Plaintiffs expert never made a site visit and used an improper building code to conjure a slope issue on the floor. While D fendant · rebut the spoliation argument, they further that, notwithstanding the 9:00 p.m. walkthrough, it is uncontroverted that Defendants' employee performed the walkthrough round at 8:30 p.m. which was approximately 30 minute before Plaintiff s subject accident according to Plaintiff who testified he fell a little before 9:00 p.m .. Therefore, Defendants contend that 30 minutes is also insufficient for them to ha e constructive notice. Plaintiffs' ubmit a r ply in further support, largely furthering their argument on spoliation. Legal Analysis To establish aprimafacie entitlement to judgment as a matter oflaw a moving party must present proof in admi sible form to demonstrate the absence of any triable is ues of fact as to each and every allegation in the complaint and bill of particulars. (See Winegrad v Med Ctr., 64 Y2d 851 [1985] ; Zuckerman v City of ew York 49 eH York Unii. Y2d 557 [1980]; accord Holli v Charle,~, Con t. Co. , Inc. 302 AD2d 700 [3d Dept 2003]' Balnys v Town of ew Baltimore 160 AD2d 1136 1136 [3d Dept 1990] [noting the movant must come ·•forward with competent proofrefuting the allegations of the complaint as amplified by the bill of particular :'].) Jn a premises liability matter ' [t]o e tablish a prima facie entitlement to summary judgment, defendant wa required to how that it maintained its property •in a reasonably afe condition and that [it] neither created nor had actual or constructive notice of the allegedly dang rous condition ' (Lucatelli v Crescent Assoc. 132 AD3d 1225 1225 [3d Dept 2015] quoting Decker v Schildt 100 AD3d 1339, 1340 (3d Dept 2012] ; see also Basso v Miller , 40 Y2d 2"3 [1976]). ·To constitute constructive notice a defi ct must be visible and apparent and it must exist for a ufficient length of time prior to the accident to permit defendant's employee to discover and remedy it' (Gordon v American Mu ·eum of atural Hi. ·tory, 67 Rivera v 2160 Realty o., LL. ., 4 Y2d 836, 837 [1986); ee Y3d 837 (2005]; see also McMullin v Martin '.· Food ofS. Burlington. Inc. 122 AD3d 1103, 1104 [3d Dept 2014] . Page 4 of 9 4 of 9 [*FILED: 5] ULSTER COUNTY CLERK 08/31/2020 02:12 PM NYSCEF DOC. NO. 70 INDEX NO. EF2018-1507 RECEIVED NYSCEF: 08/31/2020 ·'A defendant may demonstrate a lack of constructive notice by offering evidence a to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell'" (Beck v Stewart · hop Corp.. 156 AD3d 1040. I 041 [3d Dept 2017] [internal citation and quotation omitted]). Generali 20 to 40 minutes ha been an insufficient amount of tim to demonstrate constructive notice in imilar matters. ( ee Maurer v John A. Coleman Cathof ic High Sch. , 91 AD3d 1 I 68, 1169 [3d Dept 2012] [finding no constructive notice where the plaintiff fell about 30 minute of opening when the entre area had been inspected that morning prior to opening]; Cochelli v Wal-Mart Stores, Inc., 24 AD3d 852, 852 [3d Dept 2005] [finding no con tructive notice where '·safety weep" was performed one-half hour prior to the plaintiffs fall and did not reveal the unidentified substance]' Lewis v Bama Hotel Corp., 297 AD2d 422 423 [3d Dept 2002] [finding no constructive notice where alleged icy condition developed within one hour of the time that the plaintiff went into the re taurant and came back out to fall on it]; Dominy v Golub Corp. 286 AD2d 810, 810 [3d Dept 200 l] [finding no constructive notice where the plaintiff fall on a large puddle of water on the floor when the defendant's employee in pected the area 20-25 minutes prior to the fall] ; Calcango v Big V Supermarkets. Inc. 245 AD2d 698 699 [3d Dept 2007] [finding no constructi e notice where the plaintiff contended the spill as on the floor for at least 20 minutes before he slipped in fell becau e she was in the ai le that whole time]; Wollner v Weiss, 277 AD2d 804, 805 [3d Dept 2000] [dismissing the complaint where staff wept and mopped the area where the plaintiff fe ll approximately 30 to 40 minutes prior to the fall] ; Fore fer v Golub Corp. 267 AD2d 526, 526 [3d Dept 1999] [finding no constructive notice where the assi tant manager inspected the area where the plaintiff fell 30 to 40 minutes before the accident and did not observe any water on the floor] ; Van Winkle v Price Chopper Operating Co. Inc. 239 AD2d 692, 693 [3d Dept 1997] [finding no constructive notice where the a sistant manager had cleaned the floor in the area where the plaintiff fell only 35 to 40 minutes prior to the accident]). Moreover, "even assuming that water was present on the Dflooring at issue, ·the mere fact that a floor or walkway becomes slippery when wet does not establish a dangerous condition ... (Van Duser v Mount Saint Mary College, 176 AD3d 1532. 1534 [3d Dept 2019] [affirming dismis al of the complaint on wet flooring by upreme Court, lster County, Fisher, J. , 2018], quoting Todt v Schroon Riv. Camp ite , 281 AD2d 783 , 783 [3d Dept 2001]; see We sel v Service Mdse. 187 AD2d 83 7, 83 7 [3d Dept 1992] ['·the mere fact that the sidewalk wa wet was not Page 5 of 9 5 of 9 [*FILED: 6] ULSTER COUNTY CLERK 08/31/2020 02:12 PM NYSCEF DOC. NO. 70 INDEX NO. EF2018-1507 RECEIVED NYSCEF: 08/31/2020 sufficient to establish a dangerous condition"]- Bacon v Altamont Farms. Inc., 33 AD2d 708, 709 [3d Dept 1969] affd 27 Y2d 936 [1970] [ 'th mere fact that the walk was wet was not sufficient to establish a dangerou condition and something more than a slippery walk was required to be shown to enable plaintiffs to recover"] [internal citations omitted] ; see also Cavorti v Winston , 307 AD2d I 018 , 1019 [2d Dept 2003] [" rt is well settled that the mere fact that an outdoor walkway become wet from rainfall is insufficient to establish the existence of a dangerou condition'"] ; McGuire v 3901 Independence Owners. In ., 74 AD3d 434 435 [1st Dept 2010] [··The complaint properly was di missed because, a a matter of law, mere wetnes on walking urfaces due to rain does not constitute a dangerous condition''].) Pertinently, .. a wet floor-especially in a bathroom where one can expect some water to make it way out of the shower to the floor-is not enough, standing alone, to establish negligence" (Jackson v State , 51 AD3d 1251 , 1253 [3d Dept 2008] ; see eaman v late , 45 AD3d 1126, 1127 [3d Dept 2007] [holding " [t]he presence of a normal amount of water would not establish a want of reasonable care, we will not disturb the trial court· s finding that claimant did not establish liability based on the wet bathroom floor." ']). Therefore, "absent competent evidence of a defect in the surface or some deviation from relevant industry standards, the mere fact that a plaintiff ha fallen on a floor that is inherently smooth and thus slippery, will impose no liability" (Porlanova v Trump Taj Mahal A ocs. 270 AD2d 757, 758 [3d Dept 2000]). Here Defendants met their mo ing burden by and through the deposition testimony of the parties particularly Plaintiff and Mr. Taylor that constructive notice was not met. But more important Defendants' also establi shed that there as no dangerous or defecti e condition on the ground. As thi Court held in Van Duser v Mount Saint Mary Ct, Ul ter allege (Index o. 16-0854; Sup aunty 2018, Fi her, J.]), which wa affirmed by the Appellate Division, Third Department (supra, 176 AD3d 1532 [3d Dept 2019]) the mere fact the ground is "wet and slick'" does not give ri e to a dangerous or defective condition (see Todt, upra, 182 AD2d at 783 [.. the mere fact that a floor or walkway becomes slipp ry when wet does not establish a dangerous condition.'"]). In addition, like this case, the plaintiff in Van Duser argued that the defendants should ha e used mats and that the defendant did use mat in one area but not in the area where the plaintiff fell. However, as this Court found and was affirmed, the argument of mats was speculati e as an aegis to protecting the plaintiff from falling. Thi was rebutted by Defendants, who also demonstrated by the through their expert that the tile u ed on the flooring had a Page 6 of 9 6 of 9 [*FILED: 7] ULSTER COUNTY CLERK 08/31/2020 02:12 PM NYSCEF DOC. NO. 70 INDEX NO. EF2018-1507 RECEIVED NYSCEF: 08/31/2020 coefficient of friction when wet that was h;gher than what the relevant A SI and A TM tandard required. s such, the Court is satisfied both that Defendants have demonstrated there i no dangerou or defecti e condition and that they did not ha e constructive notice. Once the movant has made such a showing the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to require a trial of material que tions of fact. ( ee Zuckerman, 49 Y2d at 562 ['·mere conclusions, expressions of hope or unsub tantiated allegations or asserts are insufficient."].) " [I]n deciding a motion for summary judgment, the trial court must view all evidence in the light most favorable to the party against whom such judgment is sought and, where there is any doubt as to the existence of a triable issue of fact, it should deny the motion since the goal is issue finding rather than issue determination'· wartout v on olidated Rail Corp., 294 AD2d 785, 786 [3d Dept 2002) [citations omitted); ee al o Var ity Holding . LLC 18 ritz v Y3d 335 , 339 [201 I] · Greco v Boyce 262 AD2d 734, 734 [3d Dept 1999) [holding courts are "to view the e idence in light most fa orable to the nonmo ing part . affording that party the benefit of all reasonable inference , and to ascertain whether a material , triable issue of fact exists.'"]). Here, Plaintiff has failed to raise a question of fact or credibility. First, the entire spoliation argument is a red herring in defense of this motion . It was not an argument developed prior to the close of disclosure and appears made to attempt to escape liability. Second Plaintiffs cro motion and opposition neglected to argue as to the dangerous nature-or lack thereof-of the wet condition on the floor. Plaintiffs own deposition testimony indicated that he was unsure that he stepp d in the puddle that caused him to fall , a h --would assume that he did but he did not know if he did; this as, of course, manipulated in the affidavit in opposition that he did slip in the puddle. But nowhere in Plaintiff's cross-motion or opposition did he adequately establi h that the floor wa a dangerous condition more than a condition that was slippery when wet. Hi depo ition te timony even was that the ground was generally '·mo tly all wet," which further underscores that he wa indeed in a bathroom shower wher the floor gets wet. Without anything more this i insufficient to impose liability. (See Van Du er, 176 AD3d at 1534; accord Todt supra, 182 AD2d at 783· We sels, supra 187 AD2d at 837; Bacon supra, 33 AD2d at 709 [3d Dept 1969] [requiring something more than the walkway was wet and slippery l Jackson , supra, 51 AD3d at 1253; Seaman , 45 AD3d at 1127.) Page 7 of 9 7 of 9 [*FILED: 8] ULSTER COUNTY CLERK 08/31/2020 02:12 PM NYSCEF DOC. NO. 70 INDEX NO. EF2018-1507 RECEIVED NYSCEF: 08/31/2020 Morea er, Plaintiff was without competent evidence of the alleged defect or a de iation of the relevant industry standards to establi h an thing more than the bathroom floor wa slippery when wet. ( ee Portanova, ·upra, 270 AD2d at 758.) Plaintiff' expert did not te t or hav an rebuttal to the coefficient of friction other than offering blanket statements that the tile was not tested-which it was. Plaintiffs expert also opined that there was a defective slope of the bathroom floor, which he conjured from looking at three grainy cell phone photographs of the floor, as he did not make a site vi it. The alleged deviation was 2% which it is impossible to know how he derived thi percentage from looking at the same photograph the Court did. Moreover.. as Defendants indicated in their reply papers, Plaintiff's expert cited to the wrong section of code that was inapplicable- and the Court agrees. Plaintiff's expert response, report and affidavit in opposition is not competent. Furthermore, as alleged in Defendants ' reply, even if Defendants concede to Plaintiff timeframe that he slipped and fell before the 9:00 p.m. walkthrough, according to Defendants· employees this would mean the last walkthrough ended around 8:30 p.m. Thi is uncontroverted. Viewing the facts in a light most favorable to Plaintiff, affording that him the benefit of all reasonable inferences, the ourt cannot ay that 30-45 minutes or less was a sufficient time to demonstrate constructive notice on Defendants. In searching the record , the Court finds no ground to impose liability on Defendants. While the Court acknowledges the argument by Plaintiff regarding spoliation ame would not rise to the level of striking the answer. or would the evidence alleged to ha e been pro ided been dispo iti e. This is a lip and fall , the ultimate i sue is first hether the condition itself wa dang rou , defective, or otherwi e hazardous. Plaintiff utterly failed to demonstrate water on the bathroom floor by a shower stall wa a dangerous or defective condition or that Defendant had constructive notice of same. The Court never gets to spoliation without a dangerous condition. To the extent not specificall addres ed above, the parties remaining contentions have been examined and found to be lacking in merit or rendered academic. Thereby, it is hereby Page 8 of9 8 of 9 [*FILED: 9] ULSTER COUNTY CLERK 08/31/2020 02:12 PM NYSCEF DOC. NO. 70 INDEX NO. EF2018-1507 RECEIVED NYSCEF: 08/31/2020 ORDERED that Defendant motion for ummary judgment is GRA NTED, and the complaint asserted against D fendants is DISMISSED and all claims ass rted th rein are DENIED; and it i furth r ORDERED that Plaintiffs cross-motion is DENIED, and all other relief requested therein is denied in its entirety ; and it is further ORDERED that all other relief not di cussed above i DENIED · and it i further ORDERED that the trial scheduled in this matter is ADJOURNED, without dat . Thi s constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable pro isions of this Rule with regard to filing , entry and otice of Entry. IT IS SO ORDERED. E DATED: Augu t 31 , 2020 Catski ll , ew York TE R: L Papers Considered all from YSCEF: Motion equenc 001 : #3 1 th rough #68, including notice of motion, supporting attorney affida it, upporting affida it of Taylor, upporting affidavit of Bue ll and all exhibit ther in, memorandum of law and Motion equence 002: #4 through #30, including notice of cross motion, supporting anome affirmation, supporting affidavit of Plaintiff and all exhibits therein, memorandum of law· defendant's affidavit in opposition and in further upport, affidavit of Milian and all exhibits therein memorandum of law· and Plaintiff affirmation in reply and in further support with all exhibits therein. Page 9 of 9 9 of 9
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