DeEscobar v. Westland S. Shore Mall, L.P.
| Decision Date | 21 August 2018 |
| Docket Number | Index 610678/2017E |
| Citation | 2018 NY Slip Op 34243 (U) |
| Parties | Cirila Urbina DeEscobar, Plaintiff, v. Westland South Shore Mall, L.P., South Shore Mall LLC, Westfield, LLC and Westfield South Shore Mall Company, Defendants. Motion Sequence No. 001 |
| Court | New York Supreme Court |
Unpublished Opinion
Motion Date: 4/25/18.
Submitted: 5/23/18.
Attorney for Plaintiff: Harmon, Liner & Rogowsky.
Attorney for Defendants: Simmons, Jannace, DeLuca, LLP.
PRESENT: WILLIAM B. REBOLINI, Justice.
Upon the E-file document list numbered 15 to 21 read on this application by defendants Westland South Shore Mall, L.P., South Shore Mall LLC, Westfield, LLC, and Westfield South Shore Mall Company for an order granting them summary judgment dismissing the complaint pursuant to CPLR 3212; it is
ORDERED that the motion by defendants Westland South Shore Mall L.P., South Shore Mall LLC, Westfield, LLC, and Westfield South Shore Mall Company for summary judgment dismissing the complaint is granted pursuant to CPLR 3212.
This is a personal injury action arising from an alleged slip and fall which occurred on October 21, 2016 in front of Aeropostale and Foot Locker within the Westfield South Shore Mall, 1701 Sunrise Highway, Bay Shore, New York. The action was commenced by the filing of a summons and verified complaint on June 7, 2017. Issue was joined by all defendants on June 19, 2017. Plaintiff served her verified bill of particulars on August 14, 2017. Plaintiff was deposed on February 1, 2018. Defendants now move for summary judgment and submit in support thereof an affirmation of counsel, an affidavit of Orville Brown, the security officer for the Westfield South Shore Mall who was on-duty at the time of the alleged fall, an affidavit of Jack Barbera, the director of security for the Westfield South Shore Mall who was on-duty at the time of the accident, a copy of the pleadings and verified bill of particulars, copies of photographs of the location of the fall at or near the time of the alleged accident, and a copy of plaintiff s unsigned deposition transcript along. with correspondence from counsel for defendants dated February 16, 2018 requesting plaintiff to execute and return same within sixty (60) days pursuant to CPLR 3116 (a). The Court notes that defendants may rely upon the certified yet unsigned deposition testimony of plaintiff to sustain their prima facie burden on this motion for summary judgment, as the transcript was forwarded to plaintiffs counsel pursuant to CPLR 3116 (a), the testimony is undisputed by plaintiff, and the testimony has been adopted by plaintiff (see Pavane v. Marte, 109 A.D.3d 970, 971 N.Y.S.2d 562 [2d Dept.2013]; David v. Chong Sun Lee, 106 A.D.3d 1044, 1045, 967 N.Y.S.2d 80, 82 [2dDept. 2013]); Martin v City of New York, 82 A.D.3d 653 [2011]); Rodriguez v Ryder Truck, Inc., 91 A.D.3d 935, 937 N.Y.S.2d 602 [2d Dept 2012]; Zalot v Zieba, 81 A.D.3d 935, 917 N.Y.S.2d 285 [2d Dept 2011]; see also Bennet v Berger, 283 A.D.2d 374, 726 N.Y.S.2d 22 [1 st Dept 2001 ]; Zabari v City of New York, 242 A.D.2d 15, 672 N.Y.S.2d 332 [1 st Dept 1998]; Rodriguez v Ryder Truck, Inc., supra; Ashif v Won Ok Lee, 57 A.D.3d 700, 868 N.Y.S.2d 906 [2d Dept 2008]; Wojtas v Fifth Ave. Coach Corp., 23 A.D.2d 685, 257 N.Y.S.2d 404 [2d Dept 1965]).
Summary judgment is a drastic remedy and should only be granted in the absence of any triable issues of fact (see Rotuba Extruders, Inc. v Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141 [1978]; Andre v Pomeroy, 35 N.Y.2d 361, 362N.Y.S.2d 131 [1974]). It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient proof to demonstrate the absence of any material issues of fact (Aharez v Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 925 [1986]). Failure to make such a showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 318 [1985]). Further, the credibility of the parties is not an appropriate consideration for the Court (S.J. Capelin Assoc, Inc. v Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478 [1974]), and all competent evidence must be viewed in a light most favorable to the party opposing summary judgment (Benincasa v Garrubbo, 141 A.D.2d 636, 637, 529 N.Y.S.2d 797, 799 [2d Dept 1988]). Once & prima facie showing has been made, the burden shifts to the party opposing the. summary judgment motion to produce evidence sufficient to establish the existence of a material issue of fact (see Alvarez v Prospect Hosp., supra). However, conclusory allegations unsupported by competent evidence are insufficient to defeat a summary judgment motion (Alvarez, supra, 68 N.Y.2d at 324-325, 508 N.Y.S.2d 923, 501 N.E.2d 572). Further, a party may not, through an affidavit submitted on summary judgment, contradict his or her own deposition testimony in order to feign an issue of fact (Freiser v Stop & Shop Supermarket Co., LLC, 84 A.D.3d 1307, 923 N.Y.S.2d 732 [2d Dept 2011]; Andrew T.B. v Brewster Cent. School Dist., 67 A.D.3d 837, 889 N.Y.S.2d 240 [2d Dept 2009]; Knox v United Christian Church of God, Inc., 65 A.D.3d 1017, 884 N.Y.S.2d 866 [2d Dept 2009]; Abramov v Miral Corp., 24 A.D.3d 397, 805 N.Y.S.2d 119 [2d Dept 2005]). Where a feigned factual issue is designed to avoid the consequences of an earlier admission (see McGuire v. Quinnonez, 280 A.D.2d 587, 720 N.Y.S.2d 812 [2001]), it is insufficient to defeat summary judgment (see Israel v. Fairharbor Owners, Inc., 20 A.D.3d 392, 798 N.Y.S.2d 139 [2005]).
To prove a prima facie case of negligence, of a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries (see Pulka v Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393 [1976]). Premises liability for an injury caused by a dangerous condition is predicated upon ownership, occupancy, control, or special use (see Rodriguez v 5432-50 Myrtle Ave., LLC, 148 A.D.3d 947, 50 N.Y.S.2d 99 [2d Dept 2017]; Russo v Frankeh Garden City Realty Co., 93 A.D.3d 708, 940 N.Y.S.2d 144 [2d Dept 2012]; Ellers v Horwitz Family Ltd. Partnership, 36 A.D.3d 849, 831 N.Y.S.2d 417 [2d Dept 2007]).
However, a landowner is not an insurer of the safety of others using its property (see Maheshwari v. City of New York, 2 N.Y.3d 288, 778 N.Y.S.2d 442 [2004]) and to impose liability upon a defendant in a trip and fall action, there must be evidence that the defendant either created the condition or had actual or constructive notice of it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646 [1986]; Hayden v. Waldbaum, Inc., 63 A.D.3d 679, 880 N.Y.S.2d 351 [2d Dept 2009]; Denker v. Century 21 Dept. Stores, LLC, 55 A.D.3d 527, 866 N.Y.S.2d 681 [2d Dept 2008]; see also Barretta v. Glen Cove Prop.) LLC, 148 A.D.3d 1100, 50 N.Y.S.3d 520 [2d Dept 2017]; Scoppettone v. ADJ Holding Corp., 41 A.D.3d 693, 839 N.Y.S.2d 116 [2d Dept 2007]; Bradish v. Tank Tech Corp., 216 A.D.2d 505, 628 N.Y.S.2d 807 [2d Dept 1995]; Gaeta v. City of New York, 213 A.D.2d 509, 624 N.Y.S.2d 47 [2d Dept 1995]). A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident so that it could have been discovered and remedied (see Gordon v. American Museum of Natural History, 67 N.Y.S.2d 836, 501 N.Y.S.2d 646 [1986]; Marchese v. St. Martha's R.C. Church, Inc., 106 A.D.3d 881, 881-882, 965 N.Y.S.2d 557 [2d Dept 2013], quoting Arzola v. Boston Props. Ltd. Partnership, 63 A.D.3d 655, 656, 880 N.Y.S.2d 352 [2009]); Perez v. New York City Housing, Auth., 75 A.D.3d 629, 906 N.Y.S.2d 299 [2d Dept 2010]; Bolloli v. Waldbaum, Inc., 71 A.D.3d 618, 619, 896 N.Y.S.2d 400, 402 [2d Dept 2010] [internal quotation marks omitted]; Villano v. Strathmore Terrace Homeowners Assn., Inc., 76 A.D.3d 1061, 908 N.Y.S.2d 124 [2d Dept 2010]; Valdez v. Aramark Serv., 23 A.D.3d 639, 804 N.Y.S.2d 811 [2d Dept 2005]; Curiale v Sharrotts Woods, Inc., 9 A.D.3d 473, 781 N.Y.S.2d 47 [2d Dept 2004]; Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646 [2d Dept 1986]; Bykofsky v. Waldbaum's Supermarkets, Inc., 210 A.D.2d 280, 619 N.Y.S.2d 760 [2d Dept 1994])). Liability can be predicated only on failure of the defendant to remedy the danger after actual or constructive notice of the condition (see Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493 [1994]). A defendant who moves for summary judgment in a slip and fall case has the initial burden of making a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Mercedes v City of New York, 107 A.D.3d 767, 968 N.Y.S.2d 519 [2d Dept 2013]). This burden, however, cannot be satisfied by merely pointing to gaps in the plaintiffs case (see Valdez v. Aramark Serv., supra 23 A.D.3d 639).
Nevertheless a landowner does not have a duty to warn or protect against a condition that is open and obvious, or that is not inherently dangerous (see Losciuto v. City Univ. of N. Y., 80 A.D.3d 576, 914 N.Y.S.2d 296 [2d Dept 2011]; Weiss v. Half Hollow Hills Cent. School Dist, 70 A.D.3d 932, 893 N.Y.S.2d 877 [2d Dept 2010]; Bretts v. Lincoln Plaza Assoc, Inc., 67 A.D.3d 943, 890 N.Y.S.2d 87 [2d Dept 2009]; Murray v. Dockside 500 Mar., Inc., 32 A.D.3d 832, 821 N.Y.S.2d 608 [2d Dept 2006]; Rose v. A. Servidone, Inc., 268 A.D.2d 516, 702 N.Y.S.2d 603 [2d Dept. 2000]). An owner or general contractor has no duty to protect workers against a...
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