Giuffrida v. Metro North Commuter Railroad Company
| Decision Date | 25 January 2001 |
| Citation | 720 N.Y.S.2d 41,279 A.D.2d 403 |
| Parties | JAY GIUFFRIDA, Appellant,<BR>v.<BR>METRO NORTH COMMUTER RAILROAD COMPANY et al., Respondents. (And a Third-Party Action.) |
| Court | New York Supreme Court — Appellate Division |
Plaintiff alleges that she slipped in the Graybar Passage of Grand Central Station in the vicinity of Zaro's Bread Basket, owned and operated by defendant Azor Bake Shop. The "Aided Report" completed by the Metro North Police Department states that At a 50-h hearing, plaintiff described the substance as a dry spot: "Six inches, approximately, over a spot about nine inches, approximately." At a subsequent examination before trial, plaintiff was also asked to describe the area, stating, "It was a light substance over a dark substance." At a second examination before trial, she was asked what the substance looked like to her, responding,
On the respective defendants' motions to dismiss the complaint, Supreme Court perceived plaintiff's subsequent testimony to be a "180 degree shift in her position" and an attempt to retract the admission that "she did not know what caused her to fall." The court ruled that the later testimony "presents only a feigned factual issue designed to avoid the consequences of her earlier admission." The court concluded, "Since the area where plaintiff fell was near a garbage can, the particular debris could have been dropped at any time and since plaintiff has not shown either actual or constructive notice, liability does not lie."
Plaintiff was not obligated to identify the substance that caused her to slip and fall (Colt v Great Atl. & Pac. Tea Co., 209 AD2d 294, 295) and such omission cannot be equated with the failure to identify the cause of her fall. Contrary to defendants' suggestion, it is not plaintiff's burden in opposing the motions for summary judgment to establish that defendants had actual or constructive notice of the hazardous condition. Rather, it is defendants' burden to establish the lack of notice as a matter of law (see, Padula v Big V Supermarkets, 173 AD2d 1094, 1095; see also, Hewett v Conway Stores, 266 AD2d 137). Where the defendant neither created the condition nor had actual notice, a defendant seeking to dismiss the complaint must demonstrate the lack of evidence regarding how the alleged condition came into existence, how visible and apparent it was, and for how long a...
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