Burgos v. 205 E.D. Food Corp., Index No: 15760/06

Decision Date21 April 2008
Docket NumberIndex No: 15760/06
Citation2008 NY Slip Op 33665
CourtNew York Supreme Court


Defendants move seeking an Order granting them summary judgment over and against plaintiff. Defendants aver, inter alai, that insofar as they neither created the condition alleged nor had notice of the same, they are entitled to summary judgment as a matter of law. Plaintiff opposes the instant motion alleging that defendants not only created the condition herein, but had actual notice of the same.

For the reasons that follow hereinafter defendants motion is hereby denied.

The instant action is foralleged personal injuries stemming from the purported negligent maintenance of a premises. The verified complaint alleges that on April 25, 2006 plaintiff sustained injury while within premises located at 228 Brook Avenue, Bronx, NY (228). Its is alleged that plaintiff was injured, when she tripped and felldue to a defective condition within 228. It is alleged that defendants were negligent with respect to the maintenance of the premises herein. It is alleged that said negligence caused the accident herein.

In support of the instant motion, defendants submit plaintiff's deposition transcript, wherein she testified, in pertinent part, as follows. On April 25, 2006, at about 2:55PM, plaintiff tripped and fell while shopping within the supermarket located within 228. Plaintiff entered the supermarket, picked up a basket, checked her bag, and headed to the aisle containing mayonnaise, fruits, vegetables and sodas. She picked up a jar of mayonnaise from the shelf, took a few steps to her left, felt something on her right calf, and fell to the floor. After she fell she realized that she had tripped over a box of tangerines, which was about the same size as her shopping basket. Prior to the accident, plaintiff had not seen the box of tangerines. She frequented the supermarket two to three per week and had been therein the day prior to her accident. When at the supermarket on the date prior to her fall, she did not see the box of tangerines herein. Prior to her fall she never made any complaints to any supermarket staff regarding boxes and other stuff on the floor. However, plaintiff had complained to her family about boxes and other items on the floor. Plaintiff had been in the supermarket five minutes prior to her fall.

Defendants submit Roberto Rodriguez' (Rodriguez) deposition transcript, wherein he testified, in pertinent part, as follows. On April 25, 2006, he wasemployed as a manager within the C-Town supermarket located at 228. His duties and responsibilities entailed the directing of other employees. The supermarket herein consisted of one floor, contained six aisles, and had one public entrance. The first Isle contained produce, and items such as ketchup and mayonnaise. Some of the produce was displayed on tables secured to the floor and located in the center of the aisle. Boxes were not stored on the floor and would only occupy the floor if someone was working in the aisle. On the date herein, Rodriguez, was working in the aisle adjacent to Aisle one. He heard something fall in aisle one and reported thereto. He saw the plaintiff on the ground and heard her scream. He id not see any tangerine boxes on the floor thereat.

Defendants submit Narciza Diaz' (Diaz) deposition transcript, wherein she testified, in pertinent part, as follows. Diaz is member and principal of defendant TERRINAZ ENTERPRIZES, LLC (Terrinaz). On April 252006, Terrinaz owned and managed 228, a one story building, which it leased to defendant 228, E.D. FOOD CORPORATION (ED). ED operated a C-Town supermarket out of the premises herein. Terrinaz did not manage, operate, control, or maintain the 228, and would only enter the premises, for purposes of collecting rent. Diaz never received any complaints related to the structure of 228 nor with regard to the manner in which business was being conducted therein.

In opposition to the instant motion, plaintiff submits Mercedez Cruz'deposition transcript. Said transcript is not pertinent to the Court's decision.

The Law and Standard on Summary Judgment

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 A.D.2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 A.D.2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 A.D.2d 1002 (3rd Dept. 1988); Harry L. Cohen v. Genesee Supply Co., 7 A.D.2d 886 (4th Dept. 1959). Consequently any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Johnson v. Phillips, 161 A.D.2d 269 (1st Dept. 1999); Rue v. Stokes, 191 A.D.2d 245 (1st Dept. 1993).

Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). The burden, however, always remains where it began, with the movant onthe issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must loose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. V. Habeeb, 248 A.D.2d 50 (1st Dept. 1997).

It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. On this issue the Court of Appeals has stated

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must 'show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. (Internal citations omitted).

Friends of Animals v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065, 1067-1068 (1979). Accordingly, generally, the opponent of a motion for summary judgmentseeking to have court consider inadmissible evidence must proffer an excuse for proffering the inadmissible evidence in inadmissible form. Johnson v. Phillips, 161 A.D.2d 269 (1st Dept. 1999). Additionally, while evidence inadmissible when the motion is made and inadmissible when the case is tried, is insufficient to raise an issue of a fact precluding summary judgment; inadmissible evidence, whose inadmissability has been excused and which may likely be admissible at trial, may be considered. Phillips v. Joseph Kantor & Company, 31 N.Y.2d 307 (1972). In Philips, for example, the court discussed that in lieu of affidavits from actual witnesses, detailing the substance of their testimony, affidavits listing witnesses' names, the substance of their testimony, and how said witnesses acquired their knowledge, could be considered and could raise an issue of fact sufficient to defeat summary judgment. Id. Similarly, in Zuckerman v. City of New York, 49 N.Y.2d 557 (1980), the court discounted an attorney affirmation as speculative, in that said attorney lacked no personal knowledge of the facts he was proffering. Id. The court, however, in recognizing that inadmissible evidence could be used to preclude summary judgment, stated that if said attorney had personal knowledge of a witnesses testimony and that witnesses' testimony created an issue fact, said affirmation would suffice to defeat summary judgment. Id.; See, Indig v. Finkelstein, 23 N.Y.2d 728 (1968); Graso v. Angerami, 79 N.Y.2d 813 (1991).

When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve intoor resolve issues of credibility. As the Court stated in Kneoka v. Talman, 278 A.D.2d 811 (4th Dept. 2000):

Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcok, 190 A.D.2d 1037, 593 N.Y.S.2d 657; see generally, Black v. Chittenden, 69 N.Y.2d 665, 511 N.Y.S.2d 833, 503 N.E.2d 1370; Caoelin Assocs. v. Globe Mfg. Corp., 34 N.Y.2d 338, 34,1 357 N.Y.S.2d 478, 313 N.E.2d 776). Any inconsistencies between the deposition testimony of plointiffs gnd their gffidavits submitted in opposition to the motion present issues for trial(see, Schoen v. Rochester Gas &Elec., 242 A.D.2d 928, 665 N.Y.S.2d 372; Mickelson v. Babcock, supra).

See also, Yazicivan v. Blancato, 267 A.D.2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 A.D.2d 402 (1st Dept. 2001); Glick & Dullock v. Tri-Pac Export Corp., 22 N.Y.2d 439 (1968); Singh v. Kolcai Realty Corp., 283...

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