Farrauto v. Bon-Ton Dep't Stores, Inc.

• Decision Date: 07 October 2016
• Citation: 143 A.D.3d 1292,38 N.Y.S.3d 870,2016 N.Y. Slip Op. 06609
• Parties: Patricia FARRAUTO and Joseph A. Farrauto, as Voluntary Administrator of the Estate of Joseph Farrauto, Deceased, Plaintiffs–Respondents, v. The BON–TON DEPARTMENT STORES, INC., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

143 A.D.3d 1292

38 N.Y.S.3d 870

2016 N.Y. Slip Op. 06609

Patricia FARRAUTO and Joseph A. Farrauto, as Voluntary Administrator of the Estate of Joseph Farrauto, Deceased, Plaintiffs–Respondents,

v.The BON–TON DEPARTMENT STORES, INC., Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Oct. 7, 2016.

Osborn, Reed & Burke, LLP, Rochester (Aimee Lafever Koch of Counsel), for Defendant–Appellant.

Bergen & Schiffmacher, LLP, Buffalo (Todd M. Schiffmacher of Counsel), for Plaintiffs–Respondents.

PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND SCUDDER, JJ.

MEMORANDUM:

In this personal injury action, plaintiffs seek damages for injuries allegedly sustained by Patricia Farrauto (plaintiff) when she tripped and fell while working for a fragrance company in a department store operated by defendant. Supreme Court denied defendant's motion for summary judgment dismissing the complaint, and defendant appeals. We affirm.

Defendant contends that it is entitled to summary judgment because plaintiff cannot identify the cause of her fall without engaging in speculation (see Smart v. Zambito, 85 A.D.3d 1721, 1721, 926 N.Y.S.2d 245

). Even assuming, arguendo, that this contention was advanced in defendant's initial motion papers and thus that it is properly before us (cf.

Ozog v. Western N.Y. Motocross Assn., 100 A.D.3d 1393, 1394, 953 N.Y.S.2d 520 ), we conclude that defendant did not meet its burden of establishing its entitlement to summary judgment on that ground (see

Mandzyk v. Manor Lanes, 138 A.D.3d 1463, 1464, 31 N.Y.S.3d 715 ; Lane v. Texas Roadhouse Holdings, LLC, 96 A.D.3d 1364, 1364–1365, 946 N.Y.S.2d 339 ). Defendant submitted excerpts of plaintiff's deposition testimony in which she described the gift box over which she allegedly tripped, and her testimony is sufficient to enable a jury to determine that the gift box was the cause of her fall without resorting to speculation (see

Paternostro v. Advance Sanitation, Inc., 126 A.D.3d 1376, 1377, 5 N.Y.S.3d 768 ; Signorelli v. Great Atl. & Pac. Tea Co., Inc., 70 A.D.3d 439, 440, 894 N.Y.S.2d 409 ; see also

Dixon v. Superior Discounts & Custom Muffler, 118 A.D.3d 1487, 1488, 988 N.Y.S.2d 817 ).

We also reject defendant's contention that it is entitled to summary judgment on the ground that it neither created nor had actual or constructive notice of the allegedly dangerous condition (see generally King v. Sam's E., Inc., 81 A.D.3d 1414, 1414–1415, 917 N.Y.S.2d 480

). Defendant's submissions were insufficient to establish as a matter of law that its employees did not create the allegedly dangerous condition by placing the gift box on the floor (see Guilfoyle v. Parkash, 123 A.D.3d 1088, 1089, 1 N.Y.S.3d 188 ; Hagin v. Sears, Roebuck & Co., 61 A.D.3d 1264, 1265–1266, 876 N.Y.S.2d 777 ; Frank v. Price Chopper Operating Co., 275 A.D.2d 940, 941, 713 N.Y.S.2d 614 ), and defendant therefore also failed to establish that it did not have actual notice of the gift box on the floor prior to plaintiff's fall (see

McDonell v. Wal–Mart Stores, Inc., 133 A.D.3d 1350, 1351, 19 N.Y.S.3d 455 ; see generally

Walsh v. Super Value, Inc., 76 A.D.3d 371, 375–376, 904 N.Y.S.2d 121 ).

With respect to constructive notice, we conclude that defendant “failed to meet [its] burden of establishing that the allegedly dangerous condition was not visible and apparent for a sufficient length of time prior to the accident to permit [defendant], in the exercise of reasonable care, to discover and remedy it” (Mikolajczyk v. Morgan Contrs., 273 A.D.2d 864, 865, 709 N.Y.S.2d 283

; see generally

Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 ). While defendant submitted evidence that its employees were generally expected to identify and remedy tripping hazards, it did not submit any evidence establishing when the area of plaintiff's fall was last inspected (see

Navetta v. Onondaga Galleries LLC, 106 A.D.3d 1468, 1470, 964 N.Y.S.2d 835 ; Webb v. Salvation Army, 83 A.D.3d 1453, 1454, 920 N.Y.S.2d 562 ); that reasonable care did not require any such inspection (cf.

Pommerenck v. Nason, 79 A.D.3d 1716,...