Austin v. Cdga Nat'l Bank Trust & Canandaigua Nat'l Corp.

• Decision Date: 14 February 2014
• Parties: Vivian M. AUSTIN, Plaintiff–Appellant, v. CDGA NATIONAL BANK TRUST and Canandaigua National Corporation, Doing Business as Canandaigua National Bank and Trust Company, Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 1298

980 N.Y.S.2d 660

2014 N.Y. Slip Op. 01087

Vivian M. AUSTIN, Plaintiff–Appellant,

v.CDGA NATIONAL BANK TRUST and Canandaigua National Corporation, Doing Business as Canandaigua National Bank and Trust Company, Defendants–Respondents.

Supreme Court, Appellate Division, Fourth Department, New York.

Feb. 14, 2014.

William K. Mattar, P.C., Williamsville (Sara T. Wallitt of Counsel), for Plaintiff–Appellant.

Trevett Cristo Salzer & Andolina, P.C., Rochester (Eric M. Dolan of Counsel), for Defendants–Respondents.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, and WHALEN, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries that she sustained when she allegedly slipped and fell on an icy step while exiting defendants' bank. Defendants thereafter moved for summary judgment dismissing the complaint on the grounds that there was no dangerous condition and that they had no notice of any allegedly dangerous condition. Supreme Court properly granted defendants' motion. Although defendants' own submissions, which include the deposition testimony of plaintiff that she saw ice on the step, raise an issue of fact concerning the presence of a dangerous condition ( see generally Acevedo v. New York City Tr. Auth., 97 A.D.3d 515, 516, 947 N.Y.S.2d 599), we conclude that defendants met their burden of establishing that they lacked notice of the allegedly dangerous condition, and plaintiff failed to raise a triable issue of fact in opposition ( see Costanzo v. Woman's Christian Assn. of Jamestown, 92 A.D.3d 1256, 1258, 938 N.Y.S.2d 404;see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Here, plaintiff relies upon a theory of constructive notice, and it is well settled that, “[t]o constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it” ( Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;see Smith v. May Dept. Store, Co., 270 A.D.2d 870, 870, 705 N.Y.S.2d 153;see also O'Neil v. Holiday Health & Fitness Ctrs. of N.Y., 5 A.D.3d 1009, 1010, 773 N.Y.S.2d 724). In support of the motion, defendants submitted the deposition testimony of their facilities supervisor, who is in charge of snow and ice maintenance at the bank. The facilities supervisor testified that he routinely inspects the bank's steps and sidewalk upon his arrival at the bank between 6:30 a.m. and 7:30 a.m. He or his employees salt or shovel “first thing” in the morning, if the conditions require such action. In addition to inspecting the property upon their arrival, facilities personnel regularly monitor conditions throughout the day and “re-salt or re-shovel” as needed, and do so more frequently during inclement weather or if a customer complains. Defendants did not receive any complaints about snow, ice, or any other dangerous condition on the step prior to the accident. After the accident, which occurred at approximately 12:15 p.m., the facilities supervisor did not salt the steps or direct an employee to do so because he saw nothing to salt. Defendants also submitted the deposition testimony of their regional manager, who testified that there was no ice on the step when he arrived at the bank between 8 a.m. and 8:30 a.m. on the morning of the accident and that, after the accident, he inspected the step and the surrounding area and did not observe any snow or ice. A bank security officer testified that he photographed the step approximately two hours after the accident, at which time there was no snow or ice on the step. The security officer testified that he was “perplex[ed]” when he viewed the accident scene because he observed “nothing ... to slip or fall on.” The postaccident photographs of the step depict what appears to be salt residue, but no ice.

We cannot agree with the dissent that defendants failed to meet their burden relative to constructive notice because they did not establish when the step was last inspected and salted prior to the accident. Although “a defendant may meet its burden of affirmatively demonstrating a lack of [constructive] notice by offering proof of regularly recurring maintenance or inspection of the premises” ( Kropp v. Corning, Inc., 69 A.D.3d 1211, 1212, 893 N.Y.S.2d 371 [emphasis added]; see Webb v. Salvation Army, 83 A.D.3d 1453, 1454, 920 N.Y.S.2d 562), such evidence is not required where, as here, defendants submitted the deposition testimony from their employees who were at the bank on the day of the accident concerning the condition of the step in the hours prior to and at the time of the accident ( see Evangelista v. Church of St. Patrick, 103 A.D.3d 571, 571, 960 N.Y.S.2d 97;cf. Spector v. Cushman & Wakefield, Inc., 87 A.D.3d 422, 423, 928 N.Y.S.2d 9;De La Cruz v. Lettera Sign & Elec. Co., 77 A.D.3d 566, 566–567, 909 N.Y.S.2d 448;Kropp, 69 A.D.3d at 1212–1213, 893 N.Y.S.2d 371;see generally Rodriguez v. Bronx Zoo Rest., Inc., 110 A.D.3d 412, 412, 972 N.Y.S.2d 31).

The burden thus shifted to plaintiff to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for [her] failure so to do” ( Zuckerman, 49 N.Y.2d at 560, 427 N.Y.S.2d 595, 404 N.E.2d 718;see Rodriguez v. 705–7 E. 179th St. Hous. Dev. Fund Corp., 79 A.D.3d 518, 519, 913 N.Y.S.2d 189). Contrary to the contention of plaintiff, the unsworn expert reports that she submitted in opposition to the motion were not in admissible form and thus were insufficient to raise a triable issue of fact ( see generally Arce v. 1704 Seddon Realty Corp., 89 A.D.3d 602, 603, 935 N.Y.S.2d 1;Woodard v. City of New York, 262 A.D.2d 405, 405, 692 N.Y.S.2d 407;Stowell v. Safee, 251 A.D.2d 1026, 1026, 674 N.Y.S.2d 228;see also Ciccarelli v. Cotira, Inc., 24 A.D.3d 1276, 1276–1277, 806 N.Y.S.2d 326). In any event, the report of plaintiff's expert meteorologist was insufficient to raise an issue of fact because it “ ‘was completely speculative and conclusory, failed to set forth foundational facts, assumed facts not supported by the evidence, and failed to recite the manner in which ... [he] came to his conclusions' ” ( Ciccarelli, 24 A.D.3d at 1277, 806 N.Y.S.2d 326). The report of plaintiff's expert engineer was likewise insufficient to defeat defendants' motion because it improperly raised for the first time the allegation that the structure of the step itself was defective ( see Wilson v. Prazza, 306 A.D.2d 466, 467, 761 N.Y.S.2d 321). Although plaintiff's deposition testimony raises an issue of fact relative to the presence of ice on the step, we conclude that it is insufficient to raise an issue of fact with respect to constructive notice ( see Hyna v. Reese, 52 A.D.3d 1254, 1255–1256, 859 N.Y.S.2d 814).

Finally, there is no merit...