Carey v. Walt Whitman Mall, LLC

• Decision Date: 26 January 2021
• Docket Number: 2021-33432,Index No. 600207/2018
• Parties: G10VANNA CAREY Plaintiff, v. WALT WHITMAN MALL, LLC. ABB RESTAURANT GROUP, INC., d/b/a GASTRONOMY KITCHEN BY CIRELLA'S and SAKS FIFTH AVENUE. LLC. Defendants
• Court: United States State Supreme Court (New York)

G10VANNA CAREY Plaintiff,
v.
WALT WHITMAN MALL, LLC. ABB RESTAURANT GROUP, INC., d/b/a GASTRONOMY KITCHEN BY CIRELLA'S and SAKS FIFTH AVENUE. LLC. Defendants

No. 2021-33432

Index No. 600207/2018

Supreme Court, Suffolk County

January 26, 2021

Unpublished Opinion

FELDMAN KRAMER & MONACO, P.C. Attorney for Plaintiff.

MARSHALL DENNEHY WARNER. ESQS. Attorney for Defendant.

AHMUTY. DEMERS & MCMANUS, ESQS. Attorney for Defendant.

PRESENT: Hon. JOSEPH FARNETI Acting Justice.

Hon. Joseph Farneti Acting Justice.

Upon the following papers read on thee-filed motions for summary judgment: Notice of Motion/Order to Show Cause and supporting papers by ABB Restaurant Group, Inc.. filed December 19, 2019. and by Wait Whitman Mall, LLC and Saks Fifth Avenue. LLC. Hied March 4, 2020; Notice of Cross Motion and supporting papers ___; Answering Affidavits and supporting papers by plaintiff, filed July 10. 2020: Replying Affidavits and supporting papers by ABB Restaurant Group. Inc.. filed September 8. 2020; Other ___; it is

ORDERED that the motion by defendant ABB Restaurant Group, Inc. for summary judgment dismissing the complaint and cross claims asserted against it is granted to the extent that the complaint and cross claims asserted against it for common-law indemnification and contribution are dismissed, and is otherwise denied: and it is further

ORDERED that the motion by defendants Wait Whitman Mall, LLC, and Saks Fifth Avenue, LLC, for summary judgment dismissing the complaint and cross claims asserted against them, and for

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judgment in their favor on their cross claim for contractual indemnification, is granted to the extent that the cross claims asserted against them for contribution and common-law indemnification are dismissed. and is otherwise denied.

In this personal injury action, plaintiff, Giovanna Carey, alleges that she slipped and fell on water in a premises operated by defendant ABB Restaurant Group. Inc. d/b/a Gastronomy Kitchen by Cirella's ("ABB") as a restaurant pursuant to a written agreement with defendant Saks Fifth Avenue. LLC. The premises was allegedly owned by defendant Walt Whitman Mall. LLC ("WWM"). The incident happened on December 27, 2016. ABB interposed cross claims against Saks Fifth Avenue. LLC, and WWM for contribution, common-law indemnification, and contractual indemnification. Saks Fifth Avenue. LLC. and WWM asserted cross claims against ABB for contribution, common-law indemnification, contractual indemnification, and failure to procure insurance.

ABB now seeks summary judgment dismissing the complaint and all cross claims asserted against it. In support of its motion. ABB submits, among other things, the pleadings, transcripts of the depositions of plaintiff and Kyriaki Kalaitzidis, and a surveillance video. In opposition, plaintiff submits, among other things, her affidavit, a receipt, and a photograph.

On a motion for summary judgment, the movant has the burden to show that it is entitled to judgment as a matter of law and that there are no disputed issues of material fact (CPLR 3212; Matter of New York City Asbestos Litig., 33 N.Y.3d 20, 99 N.Y.S.3d 734 [2019]). If the movant meets its burden. then the non-movant must show that there is a material issue of fact to be resolved at trial (Matter of Eighth Jud. Dist. Asbestos Litig., 33 N.Y.3d 488. 105 N.Y.S.3d 353 [2019]). If the movant does not meet its burden, then the motion must be denied without consideration of any opposing papers (Vega v Restani Constr. Corp., 18NY3d 499, 942 N.Y.S.2d 13 [2012]). On summary judgment, the Court must view the evidence in the light most favorable to the non-moving party (id).

A defendant has constructive notice of a defect "when the defect is visible and apparent, and existed for a sufficient length of time before the accident that it reasonably could have been discovered and corrected" (Butts vSJF, LLC. 1 71 A.D.3d 688, 689, 97 N.Y.S.3d 219, 221 [2d Dept 2019]; see Bennett v Aileyne, 163 A.D.3d 754, 81 N.Y.S.3d 504 [2d Dept 2018]). "To meet its burden on the issue of constructive notice, a defendant is required to offer evidence as to when the accident site was last inspected" (Malloy v MontefxoreMed. Ctr„ 183 A.D.3d 811. 812. 122 N.Y.S.3d 532, 533 [2d Dept 2020]; see Merchant v New York City Tr. Auth, . 183 A.D.3d 647, 121 N.Y.S.3d 651 [2d Dept 2020]; Quinones v Starrer City, Inc., 163A.D.3d 1020, 81 N.Y.S.3d 184 [2d Dept 2018]). Evidence of general inspection practices is insufficient to show a lack of constructive notice (Lopez v Marshalls. 123 A.D.3d 981, 999 N.Y.S.2d 866 [2d Dept 2014]; Green v Albemarle, LLC 107 A.D.3d 948. 966 N.Y.S.2d 904 [2d Dept 2013]). The defendant must tender evidence about the ''particularized or specific inspection or []cleaning procedure" used (Birnbaum v New York Racing Assn., Inc.. 57 A.D.3d 598. 599. 869 N.Y.S.2d 222. 223-224 [2d Dept 2008]; see Fernandez v Festival Fun Parks, LLC. 122 A.D.3d 794. 996 N.Y.S.2d 676 [2d Dept 2014]), and those particular procedures must be reasonable as a matter of law (see generally Catalano v Tanner. 23 N.Y.3d 976. 989 N.Y.S.2d 9 [2014]). "The failure to conduct such inspections will result in the imputation of constructive notice to defendants as long as a reasonable inspection would

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have revealed the defective condition" (Dufrain v Mulchings. 112 A.D.3d 1212, 1213, 977 N.Y.S.2d 484. 485[3dDept2013]).

Here. ABB satisfied its prima facie burden on that branch of its motion that seeks summary judgment dismissing the complaint.^[1] Specifically. Kalaitzidis (also known as Sandy), ABB's manager, explained that she unlocked the exterior door to the restaurant and entered it at approximately 10:00 a.m. Soon after she entered, she placed two mats, a doormat and a longer mat. near the exterior entrance to the restaurant. Critically. Kalaitzidis testified that when she entered the restaurant, the floor in question was dry. Kaiaitzidis explained that the accident happened shortly thereafter; on the other hand, plaintiff stated that the accident happened around 11:00. Under either timeframe. ABB has shown that the floor was dry before the accident such that it did not have constructive notice of water or any other liquid on the floor (see Vehcci v Stop & Shop. 188 A.D.3d 436, 133 N.Y.S.3d 569 [1st Dept 2020]; Williams v New York City Horn. Auth.. 163 A.D.3d 492. 81 N.Y.S.3d 403 [1st Dept 2018]; Rodriguez v New York City Tr. Auth.. 118 A.D.3d 618. 988N.Y.S.2d 617 [1st Dept 2014]; Mueller v Hannaford Bros. Co., 276 A.D.2d 819, 713 N.Y.S.2d 789 [3d Dept 2000]). There is no evidence that ABB created a wet condition on the floor or had actual notice thereof.

In opposition, plaintiff failed to raise a triable issue of fact. To the extent that ABB was aware that it was raining outside, that does not constitute constructive notice of a wet condition inside, and ABB was "not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain" (Grib v New York City Hous. Auth, . 132 A.D.3d 725. 726. 18 N.Y.S.3d 109. 110 [2d Dept 2015] [quotation marks and citations omitted]: see Gunzburg v Quality Bldg. Servs. Corp,, 137 A.D.3d 424. 26 N.Y.S.3d 274 [1 st Dept 2016]; Musante v Department of Educ. of City of N. ¶., 97 A.D.3d 731, 949N.Y.S.2d 104 [2d Dept 2012]). Although plaintiff testified that the floor looked like it had been mopped, she stated that she did not see anyone with a mop. and no one told her that the floor had been mopped. As explained above, any discrepancy in the time of the accident-shortly after 10:00 a.m. or shortly after 11:00 a.m.-is immaterial. Although plaintiff alleges that Kalaitzidis repositioned the mats after the accident, such subsequent remedial measures are inadmissible to show negligence (see generally Caprara v Chrysler Corp.. 52 N.Y.2d I 14, 436 N.Y.S.2d 251 [1981]). Plaintiff s suggestion that one of ABB's employees, as opposed to a patron, created the allegedly wet condition is wholly speculative. Accordingly, the branch of ABB's motion that seeks summary judgment dismissing the complaint against it is granted.

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ABB also seeks summary judgment dismissing the cross claims against it. Specifically, WWM and Saks Fifth Avenue, LLC, interposed cross claims for common-law indemnification, contractual indemnification, contribution, and failure to procure insurance. As ABB was not negligent, the cross claims for common-law indemnification and...