Brumme v. Riverbay Corp.
| Decision Date | 22 March 2012 |
| Docket Number | Index No.: 22900 /2005 |
| Citation | 2012 NY Slip Op 33396 |
| Parties | Rolf Brumme Plaintiff, v. Riverbay Corporation Defendant. |
| Court | New York Supreme Court |
Justice
Plaintiff seeks recovery for injuries allegedly sustained on November 28, 2003, when he slipped and fell on water on the vestibule floor of a residential building owned and operated by defendant, and located at 4220 Hutchinson River Parkway East Bronx, New York.
This action was commenced in October 2005, and issue was joined with the service of defendant's answer in January 2006.
It is alleged that defendant was negligent in the inspection and maintenance of the entrance floor, and specifically, in' allowing the floor to become wet, and in failing to warn of the condition. It is also alleged "that the highly polished stone (or stone like substance) which comprises and or flooring of the entranceway ... constituted a nuisance, trap, menace , dangerous or defective condition under the wet and rainy weather conditions existing at the time of plaintiff's injury." [Verified Bill of Particulars ¶¶ 17-18].Plaintiff further alleges that defendant had both actual and constructive notice of the wet condition before the accident [Id.].
The Note of Issue was filed on February 10, 2011.
Defendant now moves for an order awarding summary judgment dismissing the complaint on the grounds that the evidence demonstrates as a matter of law that it neither caused the transitory wet condition to be on the floor of the vestibule, , nor, before the accident, possessed either actual or constructive knowledge that water, and /or wax had accumulated there.
Defendant submits the transcripts of plaintiff's testimony , as well as that of Riverbay's lobby attendant, and porter [Exhibits G, J, L], and the affidavits of these employees [Exhibits M, N], as well as that of an employee affiliated with Riverbay's Insurance & Risk Management Department attesting to a search for records of complaints for the period 10/28/03 - 11/28/03 [Exhibit O], and certified copies of the records of the National Climatic Data Center [Exhibit I].
In opposition, plaintiff contends that applicable appellate authority prevents defendant from relying on the "storm- in- progress" defense, and argues that defendant has failed to sustain its initial burden to prove as a matter of law the lack of prior notice of the condition of the floor. In addition, it is maintained that defendant had notice of achronic recurring condition of rain water being tracked into the marble floor, "yet they failed to have in place any remedial measures (porters, mops, rugs, warning signs, etc) that secured the safety of those who walked upon the marble floor within the vestibule area within the hour before the accident, notwithstanding that a jury could reasonably find that the vestibule was entered by dozens of people within the hour prior to plaintiff's accident." [Affirmation in Opposition p. 27]. Video footage of the vestibule area for the period commencing at 4:30 PM on the date of the accident is tendered.
In reply, defendant argues that the "storm in progress" defense is still viable, and is here, applicable. In addition, it is maintained that defendant's employees have demonstrated that on the day of the accident, there was compliance with the normal protocol for inclement weather, including he placement of a mat, and that there was an inspection of the area in the morning, and again, approximately one hour before the incident. It is also argued that defendant has demonstrated that its employees were not in receipt of any pre-accident complaints concerning the condition of the vestibule floor.
With respect to the "recurring condition" argument set forth above, defendant argues that this theory was never before alleged, and plaintiff is precluded from so doing in opposition to a dispositive motion. It is also maintained that there is no evidence to raise an issue of fact of any recurring defective condition of rain water on the vestibule floor. Finally, concerning the video, defendant contends that what is depicted does notcontradict either the sworn testimony or the attestations of Riverbay's employees, or the documentary evidence, including the log book entries maintained by the lobby attendant.
As pertinent here, plaintiff testifiec that he has resided in the subject building since 1984 [BRUMME EBT: 4], and on the day of the incident he left his apartment at around 3:00 PM to walk to the store [EBT: 13-14]. He was not sure, but he believed that he exited the building through the front entrance because he was walking, and not driving [Id. 14]. It had been raining "all day that day off an on " [Id. 16:8-9], and at that time it was "drizzling." [Id. 19: 29]. He was not carrying an umbrella [Id. 19]. He testified that he could not remember seeing any building employees as he left [Id. 18]. Whether he exited through the front or the rear of the building, he testified that he did not see any water on the floor while he was leaving [Id. 17].
The weather was the same as he walked home from the store an hour later [Id. 23-24]. He went to the front entrance of the building, and after opening the first of the two entry doors, he stepped on a mat, and then took a few steps and slipped and fell [Id. 26-30].
He described the floor material as a "stone-like substance." [Id. 30]. He did not look at the floor before he fell. He was looking towards the door and preparing to put his key in the lock [Id. 33]. He testified as follows concerning what caused him to slip.
Plaintiff testified that there were no cautions signs in the vestibule area [Id. 43]. The building's "door person" was present, and at plaintiff's request she called an ambulance [Id. 44;54].
Plaintiff also testified that he never made any complaints to Riverbay concerning a slippery condition in the vestibule area before his accident, and had no specific information about other such incidents at that location [Id. 40-42].
Luis Fernando Nunez1 testified that he had been employed by Riverbay as a porter for a period between twenty- four to twenty -six years [NUNEZ EBT: 7]. In November 2003, he was one of five porters assigned to Riverbay's Building 29B, one of whom was the "lobby man" assigned to clean the lobbies [EBT: 11-12;50-52].2 Nunez would work with the porter assigned to the lobby duty. His work week was Monday - Friday [EBT: 15], and his duties were the cleaning of the building from the 26th floor to the lobby [Id. 13].3 As part of these duties he was required to report to his supervisor after finishing a task, so that the supervisor could complete a handwritten daily report [Id. 13-14].
Nunez testified that the area between the two entry doors, as in all buildings in the development, was partially covered by a carpet, but the "sides" were not [Id. 27-30 ].
When it rained he was required to lay down carpets in the lobby "all around the hall in front of the elevators" [Id. 36:19-21], as well as " in the back side ", near another door [Id. 39:6-7]. Concerning the mopping of the floor by the entrance on a rainy day, Nunez testified that he was unable to say how often he would do so, as "it depends", because "[w]henever it's wet we have to dry." [Id. 49:10-11]. To his knowledge there were no written records kept concerning how often he would mop a particular area [Id. 49;54].
In his affidavit,4 Nunez attests that in November 2003, upon the start of his workday at 7:00 AM, he would inspect the vestibule/lobby area for debris, and/or spills, and the mopping of the floors would be done during the morning hours [Affidavit of Luis Nunez ¶¶ 5-6]. In October and November 2003, the lobby and vestibule "were never waxed." [Id. ¶ 5]. In addition, he attests that he "would immediately rectify" any spill observed during the workday, or any condition reported [Id. ¶ 7]. Finally, he attests that he was not notified of any condition on the vestibule floor prior to the accident.
Priscilla Caballero5 testified that she was employed as a lobby attendant for Riverbay and her duties included checking that the doors and elevators were working, and identifying guests as they enter the building [CABALLERO EBT: 7], In addition, when observed, the lobby attendant is required to advise Public Safety of water spills or debris in the lobby/vestibule area [EBT: 8]. She was working in Building 29B on the date of the accident, and her work hours were from 4:00 PM to 12:00 AM [Id. 11] Caballero testified that she knew "Louie" to be the building's porter, and she believed that work hours were from 7:30 to 4:00 [Id. 13].
On rainy days, the porter would put rugs down in the hallway leading from the back door to the front of the entrance door where she sat [Id. 14]. Nothing was put downin the vestibule area, i.e., on...
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