Bihari v. Kmart Corp.

• Decision Date: 26 September 2013
• Docket Number: Index No. 110858/10
• Citation: 2013 NY Slip Op 32311
• Parties: MARIANNE BIHARI, Plaintiff, v. KMART CORPORATION and 77 DEERHURST CORP. d/b/a SERVCO INDUSTRIES, Defendants.
• Court: New York Supreme Court

2013 NY Slip Op 32311

MARIANNE BIHARI, Plaintiff, v. KMART CORPORATION and 77 DEERHURST CORP. d/b/a SERVCO INDUSTRIES, Defendants.

Index No. 110858/10

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 58

Dated: September 30, 2013

Dated: September 26, 2013

DONNA MILLS, J. :

Plaintiff Marianne Bihari, commenced this negligence action to recover for personal injuries she allegedly sustained on December 19, 2009, when she claims that she slipped and fell on a wet floor inside a Kmart store located in New York County. Asserting a storm in progress defense and lack of notice, defendants Kmart Corporation and 77 Deerhurst Corp. d/b/a Servo Industries ("Defendants") move for summary judgment dismissing the plaintiff's complaint.

In this personal injury action, plaintiff claims that on December 19, 2009, she entered the Kmart store located on 34^th Street in New York County, where she maintains that while shopping on the top level of the store, she noticed there was water on the floor in the aisle. As she proceeded up the aisle, plaintiff further alleges that her foot slipped causing her to fall, and resulting in a torn hamstring. There is no dispute between the parties that it was snowing on the date of the occurrence.

Defendants produced Tony Battista a field manager on behalf of defendant Servco, who was not in the store at the time of the occurrence, nor at any time when it was snowing on the date of the occurrence. He testified as to the procedure to befollowed on snowy days. Kmart also produced for deposition, Michael Jennings one of its Loss Prevention Agents. His testimony was relevant only as to the physical description of the premises, and where in the store that he found the plaintiff after her alleged fall.

CPLR § 3212(b) requires that for a court to grant summary judgment, the court must determine if the movant's papers justify holding, as a matter of law, "that the cause of action or defense has no merit." It is well settled that the remedy of summary judgment, although a drastic one, is appropriate where a thorough examination of the merits clearly demonstrates the absence of any triable issues of fact (Vamattam v Thomas, 205 AD2d 615 [2nd Dept 1994]). It is incumbent upon the moving party to make a prima facie showing based on sufficient evidence to warrant the court to find movant's entitlement to judgment as a matter of law (CPLR § 3212 [b]). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Summary judgment should be denied when, based upon the evidence presented, there is any significant doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]). When there is no genuine issue to be resolved at trial, the case should be summarily decided (Andre v Pomerov, 35 NY2d 361, 364 [1974]).

To impose liability upon a defendant in a slip-and-fall action, there must be evidence that a dangerous or defective condition existed, and that the defendant either created the condition or had actual or constructive notice of it ( see Penn v. Fleet Bank,12 A.D.3d 584 [2^nd Dept 2004]; Christopher v. New York City Tr. Auth., 300 A.D.2d 336 [2^nd Dept 2002]; see also Gordon v. American Museum of Natural History, 67 N.Y.2d 836 [1986]). A defendant has constructive notice of a defect when the defect is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected ( see Gordon v. American Museum of Natural History, supra; Larsen v. Congregation B'Nai Jeshurun of Staten Is., 29 A.D.3d 643 [2^nd Dept 2006]). A defendant demonstrates lack of constructive notice by producing evidence of its maintenance activities on the day of the accident, and specifically that the dangerous condition did not exist when the area was last inspected or cleaned before plaintiff fell (see Raghu v New York City Hous. Auth., 72 AD3d 480 [2010]).

"To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598-599 [2008]). Merely submitting testimony of general inspection or cleaning practices, and providing no evidence "regarding any particularized or specific inspection or stair-cleaning procedure in the area of the plaintiff's fall on the date of the accident" (id. at 599), is "insufficient to satisfy the defendant's initial burden on the issue of lack of constructive notice" (Klerman v Fine Fare Supermarket, 96 AD3d 907, 908 [2012]). Only after a defendant has satisfied this threshold burden, will the sufficiency of the plaintiff's opposition be examined (see Joachim v 1824 Church Ave., Inc., 12 AD3d 409, 410 [2004]).

Defendants, in support of its motion for summary judgment, proffered thetestimony set forth in the depositions of the plaintiff and its witnesses Michael Jennings and Tony Battista. In light of the fact that, on or near the time of the occurrence a storm may have been in progress, the deposition testimony relied on by the defendants fail to establish the specific inspection procedure in the area of the plaintiff's fall on the...