Crapanzano v. Balkon Realty Co., 2008 NY Slip Op 32179(U) (N.Y. Sup. Ct. 7/3/2008), 0021164/2005

• Decision Date: 03 July 2008
• Docket Number: 0021164/2005
• Citation: 2008 NY Slip Op 32179
• Parties: CAROLYN CRAPANZANO, Plaintiff, v. BALKON REALTY CO., Defendant.
• Court: New York Supreme Court

Page 1

2008 NY Slip Op 32179(U)

CAROLYN CRAPANZANO, Plaintiff, v. BALKON REALTY CO., Defendant.

0021164/2005

Supreme Court of the State of New York, Kings County.

July 3, 2008.

DECISION AND ORDER

BERNADETTE BAYNE, Judge.

On September 11, 2002, the plaintiff in the instant action was involved in a "slip and fall" type accident at a building owned by the defendant located at 350 St. Mark's Place in Staten Island, New York. The movant makes a point of informing the Court that the City of New York is the largest tenant in the aforementioned 2., however, they are not a party to this action, and as such, their tenancy is irrelevant to this Court. The plaintiff claims that she visited the subject building in order to obtain a medicaid card, and that while in the midst of traversing a set of stairs that led from the main level to a lower level, she was caused to slip and fall as a result of a "wet condition" that was allegedly present on one step.

The defendant now moves this Court for an Order pursuant to CPLR § 3212, granting them summary judgment and dismissing the plaintiff's action on the grounds that the plaintiff cannot prove that the defendant either created the condition or had actual or constructive notice of the condition that allegedly caused the plaintiff's accident.

The plaintiff, in opposition, argues that the defendant has not met its' burden of establishing entitlement to summary judgement and further argues that the defendant's motion is premature and that further discovery is required in order for the plaintiff to better oppose the within motion.

In reply to the plaintiff's opposition, the defendant argues that the deposition testimony of their witness, James Breazile, who was the assistant superintendent of the subject building on the date of the plaintiff's accident, when read in conjunction with the plaintiff's deposition testimony clearly establishes that the defendant did not have any notice, actual or constructive, of the condition that caused the plaintiff to fall. The defendant further argues that the plaintiff has essentially narrowed the issue to constructive notice alone, owing to the fact that the plaintiff did not dispute the defendant's contention that they neither created the condition, nor had actual notice of the condition, and only argue about constructive notice in their opposition papers. Lastly, he de pendant argues that by filing her note of issue and certificate of readiness in December of 2007, the plaintiff has demonstrated that her contention that the summary judgement motion is premature because further discovery is required is not only false, but is intentionally disingenuous.

Summary judgment standard

The proponent of summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See Alvarez v Prospect Hospital, 68 NY2d 320, 324 (1986); Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649 (3d Dept 1981); Greenburg v Manlon Realty, 43 AD2d 968, 969 (2d Dept 1974); Winegrad v New York University Medical Center, 64 NY2d 851 (1985).

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." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 (2d Dept 1990). Summary judgment shall be granted only where there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 (1979).

Discussion

It is well settled in New York State that a landowner has a duty to keep the land reasonably safe for persons on the land, Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 568 352 N.E.2d 868 (1976). For a landowner to be liable to a person on the land for an injury caused by a condition on the land, the plaintiff must establish three basic elements (aside from causation and injury): a dangerous condition existed on the land; the owner created or had notice of the condition; and the owner failed to take reasonable measures to protect persons on the land from the condition. A landowner's duty regarding dangerous conditions on the land exists regardless of the cause or nature of the condition. Liability may attach to a landowner whether the danger is posed by a man-made structure or device on the land, or arises from such commonplace circumstances as the spilling of liquid, or the accumulation of debris. See generally, Drake v. State, 97 Misc.2d 1015, 416 N.Y.S.2d 734, (Ct.Cl.1979), aff'd on the opinion below, 75 A.D.2d 1017, 432 N.Y.S.2d 676 (4^th Dept., 1980); Buckowski v. Smith, 185 A.D.2d 556, 586 N.Y.S.2d 386, (3^rd Dept., 1992); Schechtman v. Lappin, 161 A.D.2d 118, 554 N.Y.S.2d 846, (1^st Dept., 1990); Goslin v. La Mora, 137 A.D.2d 941, 525 N.Y.S.2d 66, (3^rd Dept., 1988); Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493, 646 N.E.2d 795 (1994); Downey v. R.W. Garraghan, 198 A.D.2d 570, 603 N.Y.S.2d 222, (3^rd Dept., 1993); Farina v. A.R.A. Servs., Inc., 151 A.D.2d 456, 542 N.Y.S.2d 246, (2^nd Dept., 1989); Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774 (1986).

Of course, the mere fact that a dangerous condition exists on a piece of property does not automatically make the owner liable for injury caused by the condition. A property owner is not an insurer of the safety of those on the land. Thus, in light of the owner's duty to exercise only reasonable care, liability normally attaches only where the owner had actual or constructive notice of the dangerous condition. See Barnaby v. Rice, 75 A.D.2d 179, 428 N.Y.S.2d 973, (3^rd Dept., 1980); Piacquadio v. Recine Realty Corp., 622 N.Y.S.2d at 494; Gordon v. American Museum of Natural History, 501 N.Y.S.2d at 647; Santoni v. Bertelsmann Property, Inc., 21 A.D.3d 712, 800 N.Y.S.2d 676 (1^st Dept., 2005); Zanki v. Cahill, 2 A.D.3d 197, 768 N.Y.S.2d 471 (1^st Dept., 2003); Katz v. Seminole Realty Corp., 10 A.D.3d 386, 780 N.Y.S.2d 778 (2^nd Dept., 2004). A landowner has constructive knowledge of a dangerous condition only where the condition is "visible and apparent" and existed for a sufficient period of time so that the owner should have discovered it, Gordon v. American Museum of Natural History, 501 N.Y.S.2d at 647. However, a property owner's general awareness that a dangerous condition may exist does not constitute notice of a particular dangerous condition, Piacquadio v. Recine Realty Corp., 622 N.Y.S.2d at 494; Gordon v. American Museum of Natural History, supra.

Even where a property owner has no actual or constructive notice of a dangerous condition on the land, the owner is liable for injuries caused by the condition where the owner's negligence, or the negligence of another person acting for the owner, created the condition, Russell v. New York City Housing Authority, 194 A.D.2d 505, 599 N.Y.S.2d 576, (1^st Dept., 1993); Lewis v. Metropolitan Transportation Authority 99 A.D.2d 246, 472 N.Y.S.2d 368, (1^st Dept., 1984); see also Gordon v. American Museum of Natural History, supra.

Where a landowner has a duty to take measures with respect to a dangerous condition and that duty is based on actual or constructive notice of the condition, the owner must act within a reasonable time of receiving the notice. Whether the time interval is reasonable depends on such factors as how soon someone on the land is likely to encounter the danger, and how serious a resulting injury is apt to be; Gordon v. American Museum of Natural History, 501 N.Y.S.2d at 647.

As with landowners generally, shopkeepers and purveyors of other commercial establishments have a duty to keep the premises reasonably safe for persons on it. For example, they have the duty to keep floors clear of slippery substances. Very frequently, cases involving the violation of that duty involve supermarkets and other food stores. A store owner is not liable for injuries to a person who slips on a floor unless the plaintiff establishes that the owner or its employees caused the slippery condition, or that tile owner had actual or constructive knowledge of the condition. Berzon v. D'Agostino Supermarkets, Inc., 15 A.D.3d 600, 792 N.Y.S.2d 94, (2^nd Dept., 2005). See also Cochetti v. Wal-Mart Stores Inc., 24 A.D.3d 852, 804 N.Y.S.2d 857, (3^rd Dept., 2005) where a customer slipped and fell on a clear substance on the floor of an aisle in the defendant's store. The court ruled that the defendant did not have constructive notice of the substance; it was not visible or apparent, there were no footprints or tracks in it to indicate that it had been present for a sufficient period of time to permit discovery, and the defendant had inspected the area one-half hour before the incident.

In addition to testimony that a store employee was actually aware of the specific dangerous condition that caused the injury, actual notice may be established by proof that an accident was the result of a recurring dangerous condition of which the store employees were aware. Erikson v. J.I.B. Realty Corp., 12 A.D.3d 344, 783 N.Y.S.2d 661 (2^nd Dept., 2004). A plaintiff unable to secure the favorable testimony of anyone else in the store is usually relegated to relying on a constructive knowledge theory. An owner has constructive knowledge of a condition only if the condition is visible and apparent and existed for a sufficient length of time prior to the accident...