Malach v. Barnes & Noble Booksellers, Inc.
| Decision Date | 25 August 2014 |
| Docket Number | Index No. 304691/11 |
| Citation | 2014 NY Slip Op 32372 (U) |
| Court | New York Supreme Court |
| Parties | ESTHER MALACH, Plaintiff, v. BARNES & NOBLE BOOKSELLERS, INC., Defendants |
PRESENT: Honorable Mary Ann Brigantti-Hughes
DECISION / ORDER
The following papers numbered 1 to 6 read on the below motion noticed on November 26, 2013 and duly submitted on the Part IA15 Motion calendar of June 27, 2014:
Papers Submitted
Numbered
Defendants' Notice of Motion, Exhibits
1, 2
Pl.'s Aff. In Opp., Exhibits
3, 4
Def.'s Reply Aff. with Exhibits
5, 6
Upon the foregoing papers, the defendant Barnes & Noble Booksellers, Inc. ("Defendant") moves for summary judgment, dismissing the complaint of the plaintiff Esther Malach ("Plaintiff") pursuant to CPLR 3212. Plaintiff opposes the motion.
This matter arises out of an alleged trip-and-fall incident that occurred on July 17, 2008, in the entrance way of Defendant's retail store located in Yonkers, New York. At her deposition, Plaintiff testified that she was wearing a sandal with a one-inch heel on the date of her accident. She opened the entrance door and held it open for a woman and a small child, who entered the store first. Plaintiff then went to enter herself, but her heel got caught in the metal saddle in the doorway, causing her to fall. She later observed that the door saddle was not "flush to the ground." Plaintiff identified photographs of the metal saddle at her deposition, and testified that they accurately depicted the store entrance on the date of her fall.
David Apfel testified on behalf of Defendant. Mr. Apfel was the manager of the store on the date of the accident. He was not aware of any prior incidents involving anyone tripping over the door saddle. Kevina Ayala, who was a cashier at the store on the date of the accident,testified that no one had tripped on the metal door saddle in the last two years she had been working there, and no one ever complained about the condition of the entranceway. Defendant also produced the affidavit of its Risk Manager, who avers that Defendant has no record of any similar accident over a period of ten years prior to this accident.
Defendant also provides an affidavit from Mark Marpet, Ph.D., P.E., a licensed professional engineer. He reviewed Plaintiff's deposition testimony and photographs, and conducted an inspection of the premises. Dr. Marpet took measurements of the door and door saddle, and found that the maximum height differential between the door saddle and the carpet that bordered it inside of the store was about ½ inch. The maximum height differential between the door saddle and the concrete that bordered it outside of the store was between 15/16th of an inch to 1 inch. He stated that the door saddle did not violate any applicable regulation or construction code and conformed to accepted and prevailing engineering standards.
Plaintiff opposes the motion. Plaintiff's counsel notes that the fact that no previous incidents occurred at this location are not relevant to the issue of whether a hazardous condition existed. Plaintiff does not dispute Defendant recitation of the procedural history or Defendant's characterization of the relevant testimony. Instead, Plaintiff primarily relies on an affidavit from William Marietta, Ph.D., a Certified Safety Professional who was retained in order to oppose the instant motion (Pl. Aff. In Opp, Par 17). Dr. Marietta; states that he conducted an inspection of the subject door saddle, and agrees with Dr. Marpet that its highest point measures 15/16th -1 inch above the concrete in front of it. Dr. Marietta, however, opines that this height differential constituted a dangerous condition and violated certain relevant safety standards and codes. Specifically, states that the door saddle did not conform to New York State Fire Prevention and Building Code of 1984, which required door saddles to be a maximum of 3/4 of an inch high. He also opines that the door saddle violated a certain generally-accepted architectural text, as well as "ASTM" guidelines for "Standard Practice fo Safe Walking Surfaces." Dr. Marietta cites various publications which detail tripping hazards in places with insufficient foot ground clearance, and opines that abrupt chances in level above 1/4 of an inch are hazardous if improperly transitioned. At a minimum, he posits that there should have been precautions or warnings in the area until permanent changes could be made. He concludes that Defendantdeparted from good and accepted safe practice as set forth in ASTM publication F1637, and violated the Property and Maintenance Code of New York State.
To be entitled to the "drastic" remedy of summary judgment, the moving party "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 from the case." (Winegrad v. New York University Medical Center, 64 N.Y.2d 851 [1985]; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id., see also Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Facts must be viewed in the light most favorable to the non-moving party (Sosa v. 46th Street Development LLC.,101 A.D.3d 490 [1st Dept. 2012]). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 N.Y.3d 499 [2012]). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire's Hospital, 82 N.Y.2d 738,[1993]).
To be considered "open and obvious," a hazard must be of a nature that could not reasonably be overlooked by anyone in the area whose eyes were open, making a posted warning of the presence of the hazard superfluous (Westbrook v. WR Activities-Cabrera Mkts., 5 A.D.3d 69 [1st Dept. 2004]). A hazard that is open and obvious "may be rendered a trap for the unwary where the condition is obscured or the plaintiff's attention is otherwise distracted (Mauriello v. Port Auth. of N.Y. and N.J., 8 A.D.3d 200 [1st Dept. 2004]). Whether a condition is open and obvious is generally a jury question, and a court should only determine that a risk was open andobvious as a matter of law when the facts compel such a conclusion, where the basis is clear and undisputed evidence (Westbrook, supra, citing Tagle v. Jakob, 97 N.Y.2d 165, 169 [2001]). Even so, that would only determine the issue of breach of duty to warn, and not dispose of a landowner's duty to maintain the premises in a safe condition (Cohen v. Shopwell, Inc., 309 A.D.2d 560 [1st Dept. 2003][ that liability may be premises on a breach of duty to maintain a reasonably safe condition even where the obviousness of the risk negates any duty to warn]). Still, a court is not precluded from granting summary judgment, where the condition complained of is, as a matter of law, not inherently dangerous (Boyd v. New York City Housing Auth, 105 A.D.3d 542 [1st Dept. 2013]). "In such circumstances, the condition which caused the accident cannot fairly be attributed to any negligent maintenance of the property" (Id., citing Cupo v. Karfunkel, 1 A.D.3d 48, 52 [2d Dept. 2003]).
In New York, there is no "minimum" actionable defect dimension (Trincere v. County of Suffolk, 90 N.Y.2d 976 [1997]). Instead, whether a dangerous condition exists so as to create liability depends on the facts and circumstances of each case and is generally a question of fact for the jury (Id., citing Hecht v. City of New York, 60 N.Y.2d 57 [1983]). Where an alleged environmental defect is caused by a height differential the proper inquiry is whether the defect "had the characteristics of a trap or a snare" such as an "edge" (Spiegel v. Vanguard Construction and Development Co., 50 A.D.3d 387 [1st Dept. 2008]); Glickman v. City of New York, 297 A.D.2d 220 [1st Dept. 2002]). Cases where summary judgment have been granted in favor of defendant primarily involve environments where an alleged height differential, and nothing more, caused the injury (Gaud v. Markham, 307 A.D.2d 845 [1st Dept. 2003][summary judgment proper where a small height differential on concrete stairway was alleged to have caused plaintiff's fall]; Wallace v. Riverbay Corp., 264 A.D.2d 329 [1st Dept. 1999] []; Figueroa v. Haven Plaza Housing Development Fund Co., Inc., 247 A.D.2d 210 [1st Dept. 1998][ a 1 ½ inch depression in a walkway not actionable in this circumstance]).
In this matter, Defendant's submissions, including Plaintiff's testimony, the photographic evidence, and expert affidavit, satisfies Defendant's initial burden of demonstrating that this alleged defect was trivial, the store entrance was not inherently dangerous, and thus the conditionwas not actionable as a matter of law (see Ether idge v. Marion A. Daniels & Sons, Inc., 96 A.D.3d 436 [1st Dept. 2012]). The evidence, including photographs, confirm that the door saddle did not have the characteristics of a trap or a snare (Trincere v. County of Suffolk, 90 N. Y.2d at 976; Nussbaum v. Broken Down Valise Pub., 115 A.D.3d 718 [2nd Dept. 2014]). Plaintiff testified that she had traversed the area multiple times in the past without incident. Defendant provided testimony from various employees...
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