Jones v. Brooklyn Hop 2 LLC
| Decision Date | 14 November 2022 |
| Docket Number | Index No. 524385/2018,Motion Sequence Nos. 2,3 |
| Parties | MARY JONES, Plaintiff, v. BROOKLYN HOP 2 LLC, IHOP RESTAURANTS LLC and REVA HOLDING CORP., Defendants. |
| Court | New York Supreme Court |
DECISION AND ORDER
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered (NYSCEF)
Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed 34-36, 38-55, 57-80, Opposing Affidavits (Affirmations)......................................................... 82-85, 87-93, 95-99, Reply and Sur-Reply Affidavits (Affirmations)........................................ 109, 111-113, 115, Memorandum of Law................................................................................ 37, 100-107, After a review of the papers and oral argument, the Court finds as follows:
The instant action results from an alleged trip and fall incident that occurred on January 17, 2017. On that day the Plaintiff, Mary Jones (hereinafter "the Plaintiff) allegedly injured herself at a restaurant owned and operated by Defendants Brooklyn Hop 2 LLC and IHOP Restaurants, LLC, (hereinafter the "IHOP Defendants") located at 785 Flushing Avenue, Brooklyn, N.Y. (the "Restaurant"). The Plaintiff alleges in her complaint that she fell as a result of a defective condition on the floor of the Restaurant.
The IHOP Defendants now move (motion sequence #2) for an order pursuant to CPLR 3212 granting summary judgment, dismissing the complaint of the Plaintiff and dismissing any cross-claims against it. The IHOP Defendants argue that summary judgment should be granted as the molding on the floor that the Plaintiff allegedly tripped on was trivial and therefore not actionable. What is more, the IHOP Defendants argue that the alleged condition was open and obvious and not inherently dangerous. The IHOP Defendants also argue that they did not create the condition and did not otherwise have notice of the condition.
Both the Plaintiff and Defendant Reva Holdings Corp. (hereinafter "Defendant Reva") oppose the motion by the IHOP Defendants. Reva apparently owns the property where the Restaurant is located. The Plaintiff argues that the IHOP Defendants have failed to meet their prima facie burden. The Plaintiffs further argue that even assuming, arguendo, that they have, there are issues of fact regarding whether the defect at issue was trivial and whether the IHOP Defendants exercised reasonable care in their construction and maintenance of the property. Specifically, Defendant Reva argues that there are issues of fact regarding whether the IHOP Defendants created the condition at issue and whether the condition is in fact de minimis or open and obvious. Defendant Reva also contends that the IHOP Defendants have failed to meet their prima facie burden with respect to the dismissal of the cross-claims by Reva against IHOP.
Defendant Reva also moves (motion sequence #3) for an order pursuant to CPLR 3212 granting summary judgment, dismissing the complaint of the Plaintiff and dismissing any cross-claims against it. Defendant Reva argues that it cannot be liable for Plaintiffs injuries because pursuant to its subject lease agreement with the IHOP Defendants, Defendant Reva is a landlord out of possession and therefore has no duty to keep the premises in good repair. Defendant Reva also argues that the condition alleged was open and obvious and that it did not cause or create it. Defendant Reva also seeks summary judgment on its cross-claims against IHOP for indemnification and IHOP's purported failure to obtain insurance covering Reva.
The IHOP Defendants oppose the motion and argue that there are issues of fact regarding whether Defendant Reva is an out of possession landlord. The IHOP Defendants contend that a review of the lease agreement raises issues of fact regarding whether Defendant Reva continued to have a responsibility to maintain the area of the floor at issue and whether the defect in question could be described as a structural defect. The IHOP Defendants argue that testimony from its employee creates a material issue of fact regarding whether agents of Defendant Reva inspected the Restaurant. IHOP argues that in the event that an inspection did occur Defendant Reva would also have to show that it did not have actual or constructive notice of the alleged condition. IHOP argues that Reva has not shown it lacked notice. The IHOP Defendants also argue that Defendant Reva is not entitled to either common law or contractual indemnification, as it was not negligent and the lease between the parties requires such a showing in order to trigger its indemnity obligation.
Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it "should only be employed when there is no doubt as to the absence of triable issues of material fact." Kolivas v. Kirchoff, 14 A.D.3d 493, 787 N.Y.S.2d 392 [2d Dept 2005], citing Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 1341 [1974]. The proponent for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. See Sheppard-Mobley v. King, 10 A.D.3d 70, 74, 778 N.Y.S.2d 98 [2d Dept 2004], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923 [1986], Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316 [1985]. "In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inference must be resolved in favor of the nonmoving party." Adams v. Bruno, 124 A.D.3d 566, 566, 1 N.Y.S.3d 280, 281 [2d Dept 2015] citing Valentin v. Parisio, 119 A.D.3d 854, 989 N.Y.S.2d 621 [2d Dept 2014]; Escobar v. Velez, 116 A.D.3d 735, 983 N.Y.S.2d 612 [2d Dept 2014].
Once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" Garnham & Han Real Estate Brokers v Oppenheimer, 148 A.D.2d 493, 538 N.Y.S.2d 837 [2d Dept 1989]. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Demshick v. Cmty. Hous. Mgmt. Corp., 34 A.D.3d 518, 520, 824 N.Y.S.2d 166,168 [2dDept20O6]; see Menzel v. Plotnick, 202 A.D.2d 558, 558-559, 610N.Y.S.2d 50 [2d Dept 1994].
Motion Sequence #2 (IHOP Defendants)
Generally, in a trip and fall case, a defendant makes siprimafacie showing of its entitlement to summary judgment by presenting sufficient evidence to show that they neither created nor had actual or constructive notice of the allegedly dangerous condition. See Hackbarth v. McDonalds Corp., 31 A.D.3d 498, 499, 818 N.Y.S.2d 578 [2nd Dept, 2006] Curtis v Dayton Beach Park No. 1 Corp., 23 A.D.3d 511, 512 [2nd Dept, 2005]. The movant can meet this burden by submitting testimony showing when the area in question was last cleaned or inspected, or by submitting evidence as to whether any complaints had been received between the time the area was last cleaned or inspected and the time of the alleged incident. See Perez v. New York City Hous. Auth., 75 A.D.3d 629, 630, 906 N.Y.S.2d 299 [2nd Dept, 2010]; Williams v SNS Realty of Long Is., Inc., 70 A.D.3d 1034 [2nd Dept, 2010]; Rios v New York City Hous. Auth., 48 A.D.3d 661, 662 [2nd Dept, 2008].
The IHOP Defendants argue that the molding upon which the Plaintiff allegedly tripped was a trivial, or de minimis, defect and therefore not actionable. The IHOP Defendants also contend that they did not create the condition at issue and did not have actual or constructive notice of the purported defect. The IHOP Defendants rely primarily on the deposition testimony of the Plaintiff and the deposition testimony of Lance Jackson. When asked, during her deposition, where her accident took place Plaintiff stated "[a]t an IHOP on Flushing Avenue." (See IHOP Defendants Motion, Exhibit "I", Page 9) When asked if she had been there before she stated "[n]ope, that's why I was there." (See IHOP Defendants Motion, Exhibit "I", Page 10). When asked if her accident happened before or after she had her meal with her daughter, the Plaintiff stated "[a]fter." (See IHOP Defendants Motion, Exhibit "I", Page 45) When asked how the accident occurred, the Plaintiff stated that "[a]s I stepped out of the booth, I told her bye, turned around to walk towards the railing to walk out, and as I was walking, my foot caught on this molding that they had down there and I fell." When asked how far from the booth this molding was, the Plaintiff stated "[m]aybe eight feet, maybe." (See IHOP Defendants Motion, Exhibit "I", Page 49).
When asked, during his deposition, what his position with the IHOP Defendants was, Lance Jackson stated that, "I am a district manager or area manager." When asked whether the location at issue was one that he supervised, Mr. Jackson stated "[y]es, it was." (See IHOP Defendants Motion, Exhibit "N", Page 10) When asked what his responsibilities are, Mr. Jackson stated "I handle all HR issues, maintenance issues, things of that sort." (See IHOP Defendants Motion, Exhibit "N", Page 11) When asked whether there was any construction or renovation of the Restaurant from 2016, when he became the district manager, to the date of the Plaintiffs accident, Mr. Jackson stated "I think there was, yes." (See IHOP Defendants Motion, Exhibit "N", Page 13). ...
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