Anthony v. Highlands Country Club, Garrison Props. LLC
| Decision Date | 16 February 2017 |
| Docket Number | No. 603764/15.,603764/15. |
| Citation | 54 N.Y.S.3d 609 (Table) |
| Parties | Kristina ANTHONY, Plaintiff(s), v. HIGHLANDS COUNTRY CLUB, Garrison Properties LLC and Garrison Highlands, LLC, Defendant(s). |
| Court | New York Supreme Court |
Law Offices of Harry C. Demiris Jr. PC, Westbury, Attorney for Plaintiff.
Smith Sovik Kendrick & Sugnet, PC, East Meadow, Attorney for Defendants.
The following papers were read on this motion:
| Papers Numbered | |
| Notice of Motion, Affidavits (Affirmations), Exhibits Annexed | 1 |
| Answering Affidavit | 2 |
| Reply Affidavit | 3 |
| Memoranda of Law | 4 |
Defendants move pursuant to CPLR 3212 for summary judgment dismissing the complaint.
Before this court is a personal injury action. On August 30, 2014, plaintiff was attending a wedding at the Highlands Country Club. Plaintiff alleges that she slipped and fell on the dance floor as a result of a dangerous condition thereon.
In support of this motion are four deposition transcripts which are attached to the moving papers. The first deposition is of the plaintiff, Kristina Anthony. She testified that she was attending her cousin's wedding on the evening of August 30, 2014 at the Highlands Country Club in Garrison, New York. Plaintiff was dancing on the wood dance floor, and at the time of the accident, plaintiff's feet came out from under her. She fell down and her left wrist took the brunt of the fall. She was helped up and continued to dance for about one or two more minutes. Prior to or after her fall, plaintiff testified that she did not see or become aware of anything on the floor that would have caused her to fall. She did not notice any member of the wait staff spill anything on the floor.
Plaintiff testified that after she fell, she heard Danielle West (the maitre d'of Highlands Country Club) tell plaintiff's husband, William Anthony, that she was sorry that water was present on the dance floor.
William Anthony, plaintiff's husband, testified that he and his wife attended a wedding on August 30, 2014 and he witnessed his wife's accident. At the time of the accident she was dancing with family and friends. Prior to his wife falling, he did not notice anything on the floor in the area where she had fallen, nor did he see anyone spill anything in the area where she had fallen.
After the accident, he picked up his wife and took her outside of the wedding hall. He then went in to find the maitre d'. that his wife fell on the dance floor, there was water on the dance floor and his wife was hurt "pretty bad." Mr. Anthony testified that in response the women said, "Oh, s* *t, they didn't clean that up" and that she further stated, "They were supposed to clean that up." He then took her to the area on the dance floor where his wife fell. The maitre d' saw that the floor was wet and said, "I got to get that cleaned up." Mr. Anthony testified that the maitre d' was upset because prior to the happening of this incident, she told her staff to clean it up.
Mr. Anthony testified that he noticed water on the dance floor after he picked up his wife. It was a wet surface that measured about one or two feet. An accident report was taken. Other than the telephone numbers, the report was filled out by the maitre d'.
There is also a deposition of Danielle West, who was the Event Sales Manager for the Highlands Country Club in August of 2014. She testified that she does the hiring, preparations and scheduling for weddings. She does the sales for the country club and meets with the clients to determine their needs. She is also present at the event from beginning to the end. Ms. West makes sure that the event runs well and all of the guests are taken care of. She was at the event on August 30, 2014. According to Ms. West, water and wine are brought to the tables in bottles, not glasses, and poured by wait staff. The bar is self service. Further, there is a housekeeper who mops and sweeps the dance floor Monday, Wednesday, Friday, Saturday and Sunday during the day. During an event, if there is a spill on the floor, an employee would stand over the spill to make sure no one walks over the area. Another server goes to the kitchen and grabs "purple rags" in order to clean up the spill. Once the floor is dry, everything can resume.
At the time of the party, Ms. West was not aware of anything spilling on the dance floor, nor was any of the staff aware of any spill on the dance floor. None of Highlands' employees cleaned up any spill because there was no spill. Further, she has no recollection of a conversation with Mr. Anthony about any spill. Any conversation would have been noted in her incident report. There is no notation of a spill on the report. In addition, Mr. Anthony did not tell her the precise location where his wife had fallen, nor did any other person advise her of the location of the fall.
After she took the report, she left Mrs. Anthony to walk around the dance floor. Mr. Anthony did not go with her.
The final deposition was of a non-party Lindsey Kolb. On August 30, 2014 she attended her husband cousin's wedding. Prior to the accident she was on the dance floor and witnessed the plaintiff fall. In the moments leading up to the fall, she only observed a wooden floor with nothing else out of the ordinary on the floor. She observed the plaintiff lose her balance and fall to the floor. She got back up and continued to dance. Ms. Kolb testified that the plaintiff's husband did not come over to assist the plaintiff in getting up. After the plaintiff got up, Ms. Kolb testified that she did not observe any water or wetness on the floor. None of the people dancing examined the floor. Plaintiff's wrist then began to swell and they left the dance floor to sit outside. Ms. Kolb further testified that Mr. Anthony did not witness the fall.
In opposition, counsel for plaintiff submits three of the same depositions submitted by the defendants (Kristina Anthony, William Anthony and Danielle West).
It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact (Sillman v. Twentieth Century Fox, 3 N.Y.2d 395 [1957] ; Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986] ; Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ; Bhatti v. Roche, 140 A.D.2d 660[2d Dept 1998] ). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the Court, as a matter of law, to direct judgment in the movant's favor (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065 [1979] ). Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation (CPLR § 3212[b] ; Olan v. Farrell Lines, 64 N.Y.2d 1092[1985] ).
If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980], supra ). It is incumbent upon the non-moving party to lay bare all of the facts which bear on the issues raised in the motion (Mgrditchian v. Donato, 141 A.D.2d 513 [2d Dept 1998] ). Conclusory allegations are insufficient to defeat the application and the opposing party must provide more than a mere reiteration of those facts contained in the pleadings (Toth v. Carver Street Associates, 191 A.D.2d 631 [2d Dept 1993] ). When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist (Sillman v. Twentieth Century Fox, 3 N.Y.2d 395 [1957], supra )." (Recine v. Margolis, 24 Misc.3d 1244A [Sup.Ct. Nassau Cty.2009] ).
"A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it." (Yioves v. T.J. Maxx, Inc., 29 AD3d 572, 572 [2006] ; see Britto v. Great Atl. & Pac. Tea Co., Inc., 21 AD3d 436 [2005] ; Joachim v. 1824 Church Ave., Inc., 12 AD3d 409, 410 [2004] ; Stumacher v. Waldbaum, Inc., 274 A.D.2d 572 [2000] ). Only after the movant has satisfied this threshold burden will the court examine the sufficiency of the plaintiff's opposition (see Britto, 21 AD3d 436 ; Joachim, 12 AD3d 409 ).
More specifically, (Fox v. Wyeth Labs, 129 A.D.2d 611 [2d Dept 1987] ).
Here, there is no evidence that defendants created the alleged condition or proof required to establish constructive notice by the defendants. The plaintiff contends that notice can be imputed to the defendant on the basis of a "recurrent condition." In particular, the plaintiff alleges that "insofar as the...
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