Berkowitz v. Kiop Meadowbrook L.P.
| Decision Date | 03 December 2019 |
| Docket Number | Index No. 604642/15,Motion Seq. Nos. 01,02 |
| Citation | 2019 NY Slip Op 34838 (U) |
| Parties | MADELINE BERKOWITZ, Plaintiff v. KIOP MEADOWBROOK L.P. and MARSHALLS OF MA, INC., Defendants. |
| Court | New York Supreme Court |
SHORT FORM ORDER
DENISE L SHER, A.J.S.C.
The following papers have been read on these motions:
Papers Numbered
Upon the foregoing papers, it is ordered that the motions are decided as follows:
Defendant KIOP Meadowbrook L.P. ("KIOP") moves (Seq. No. 01) pursuant to CPLR § 3212, for an order granting summary judgment dismissing plaintiffs Verified Complaint as against it, as well as any and all cross-claims as against it. Plaintiff opposes the motion. i Defendant Marshalls of MA, Inc. ("Marshalls") moves (Seq. No. 02) pursuant to CPLR § 3212, for an order granting summary judgment dismissing plaintiffs Verified Complaint as against it, as well as any and all cross-claims as against it. Plaintiff opposes the motion.
The instant action was brought to recover for personal injuries allegedly sustained by plaintiff on August 27, 2013, at approximately 1:00 p.m., when she slipped and fell on the sidewalk outside of the Marshalls store located at 256 East Sunrise Highway, Freeport, County of Nassau, State of New York. See Defendant KIOP's Affirmation in Support Exhibit D. Plaintiff commenced the action with the filing of a Summons and Verified Complaint on or about July 14, 2015. See Defendant KIOP's Affirmation in Support Exhibit A. Issue was joined by defendant KIOP on or about September 8, 2015. See Defendant KIOP's Affirmation in Support Exhibit B. Issue was joined by defendant Marshalls on or about September 9, 2015. See Defendant KIOP's Affirmation in Support Exhibit C.
With respect to defendant KIOP's motion (Seq. No. 01), its counsel submits, in pertinent part, that, "[t]he basis for the making of the within motion is that the plaintiff has failed to identify a dangerous or defective condition at the location of her fall. During plaintiffs deposition on April 13, 2016, while she repeatedly testified that she fell right outside the door going into Marshalls and just a couple of feet from it, when she was shown several photographs of the sidewalk in this area, she failed to identify any defective or dangerous condition right outside the entrance doors to the Marshalls store. As no defective or dangerous condition existed on the sidewalk in this area, the plaintiff is unable to establish that KIOP created such condition which caused her fall or had actual or constructive notice of same.
In support of the motion (Seq. No. 01), defendant KIOP submits the transcripts from plaintiffs Examinations Before Trial ("EBT") testimony, the transcript from defendant Marshalls' employee, David Mercado, and the affidavit of the property manager of the subject shopping center at issue Morgan Nuss of Kimco Realty Corporation See Defendant KIOP's Affirmation in Support Exhibits F, H and J; Defendant KIOP's Nuss Affidavit in Support.
Counsellor defendant KIOP contends, in pertinent part, that, "[t]he plaintiff identified nine (9) photographs she took of the accident location.... They were marked at her deposition as Ex's A through I and are marked hereto as Exhibits K through S, respectively. On pages 94-95, she testified that Ex. A, marked here as Exhibit 'K' and Ex. B, marked here as Exhibit 'L' do not show the crack and/or hole she alleges caused her accident, although they do accurately depict the outside of Marshalls on the date of loss. She testified n pages 94-95 that Ex. C, marked here as Exhibit, 'M', Ex. E, marked here as Exhibit 'O', Ex. F marked here as Exhibit 'P', Ex. G, marked here as Exhibit 'Q', Ex. H, marked here as Exhibit 'R', and Ex. I, marked here as Exhibit 'S' depict the hole and/or crack which caused her fall. On pages 96 and 97 the plaintiff placed circles around the area on such exhibits. She was unable to see the hole and/or crack in Ex. D, marked here as Exhibit 'N' and as such, no markings were place upon this exhibit. A review of the photographs finds that the plaintiff circled two different areas upon which she alleges she fell. Further, based upon a review of Ex's K through S, it is clear that both of these areas are located in front of the Exit doors to the Marshall's (sic) store: not the Entrance doors; where the plaintiff testified her accident occurred. Ex. K depicts the front of the store. There are two entrance doors on the right side of the photograph. Each have decals with black arrows on same; which pictorially advise a customer to enter at these doors. Ex. K also depicts two Exit doors leading from the store as well as two metal railings on either side of the Exit doors. On one of the Exit doors can be seen a red circle with white letters as well as a yellow circle with black letters. Ex. L depicts a close up of the Exit doors with two red warning signs on same, advising 'Do Not Enter'. In the same photo, immediately to the left of the doors is the metal railing furthest from the entrance doors. Ex. M was marked by plaintiff with a circle and her initials. The area circled is one of the areas where she alleges she fell.... A review of the exhibit shows that the area circled is located just to the left of the metal railing shown in the forefront of the photograph. This handrail separates the Entrance side from the Exit side of the store. This area is at the Exit doors to the store; not in the front of the Entrance doors which are the doors plaintiff testified she was standing in front of at the time of the accident. According to plaintiffs testimony, Ex. O shows the area alleged to have caused the accident.... This area was circled and initialed by plaintiff. This area is just in front of the metal railing located furthest from the entrance doors and is not the same area circled by plaintiff in Ex. M. (Please refer to the affidavit of Joseph Staigar attached hereto with respect to the distance from the Entrance doors to the area marked by plaintiff in Ex. O). This area is also located on the sidewalk in front of the Exit doors. The 'area in Ex. P circled by plaintiff is the same area marked by plaintiff in Ex. O. The garbage pail against the brick wall and to the left of the railing can be used as a point of i reference Similarly, the area circled and initialed by plaintiff in Ex's Q and R is the same area as that circled in Ex's O and P; located at the store's Exit, near the metal railing farthest from the entrance doors. Based upon plaintiffs testimony, her accident could not have occurred at the area circled by plaintiff in Ex's O, P, Q and R. She would have only had occasion to walk upon the area she identified in these photos if she turned around from her location right outside the i entrance door and walked past the railing or if she had been inside the store and was exiting same. She offered no testimony that she turned around and took steps walking past the railing and offered no testimony that she entered the store. Instead, she stated that she was only a couple of feet from the entrance doors, and fell right outside said door to enter the store. Certainly, the plaintiff, who shopped at this Marshalls once or twice a month for years prior to the accident, was familiar with the entrance doors to the store and was able to give accurate testimony at her deposition as to where she was standing at the time of the accident. The area identified in Ex's O through R is not-'located in front of the entrance doors and therefore did not cause the accident alleged herein. Finally, Ex. S, also marked by plaintiff at her deposition ..., depicts the same area she identified in Ex. M; also, at the Exit to the store; not at the Entrance doors. As such, this area did not cause the accident alleged. It is noted and as will be set forth below, plaintiffs expert, i i Stanley Fein, does not make any mention of this area as a cause of plaintiff s alleged accident but l instead opines about the area marked by plaintiff in Ex's O, P, Q and R. Further the attached affidavit of Joseph Staigar addresses the distance from the entrance doors to the area identified by plaintiff in Ex. M and Ex. S. A review of the photographs marked by the plaintiff during her deposition finds that the plaintiff has not circled any area at the Entrance doors to the store. In fact, her photographs focus only upon two areas on the entire sidewalk at the front of the store; both at the Exit doors. It appears that when the plaintiff returned to the Marshalls store within days of her accident, and looked at the sidewalk she was uncertain where she fell; causing her to photograph two 'different areas bot (sic) at the Exit doors. Indeed, while plaintiffs photographs Ex's Q and R hereto depict the sidewalk at both the Entrance and Exit doors and plaintiff easily r could have circled an area on the sidewalk at the Entrance doors, she plaintiff (sic) circled areas i-at the Exit doors; as depicting where she fell. It is respectfully submitted that the plaintiff has failed to identify a dangerous or defective condition in front of the Entrance doors where she testified her accident occurred on August 27, 2013." See Defendant KIOP's Affirmation in Support Exhibits K-T.
Counsel for defendant KIOP also submits the report of plaintiff s expert, Stanley Fein, P.E. ("Fein"). See De...
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