Marco v. Laro Maintenance Corp., 2008 NY Slip Op 31961(U) (N.Y. Sup. Ct. 6/26/2008)
| Decision Date | 26 June 2008 |
| Docket Number | 17755/05,Motion Sequence: 001.,Motion Sequence: 002.,7755-05/ |
| Parties | ANNA MARCO, Plaintiff(s), v. LARO MAINTENANCE CORPORATION and DELTA AIR LINES, INC., Defendant(s). LARO MAINTENANCE CORPORATION Plaintiff(s), v. LINC FACILITY SERVICES, LLC, f/k/a AFFILIATED BUILDING SERVICES, INC., Defendant(s). |
| Court | New York Supreme Court |
Motion (seq. No. 1) by the attorneys for the third-party defendant Linc Facility Services, LLC f/k/a Affiliated Building Services, Inc. ("Linc") for an order pursuant to CPLR § 3212 granting summary judgment with respect to defendant, third-party plaintiff Laro Maintenance Corporation's ("Laro") third-party complaint against third-party defendant Linc is denied. Cross-motion (seq. No. 2) by the attorneys for the defendant, third-party plaintiff Laro for an order pursuant to CPLR § 3212 granting summary judgment in favor of Laro dismissing all claims asserted against Laro is denied.
The plaintiff alleges that on August 8, 2005, she slipped and sustained personal injuries due to a wet condition on the floor located in the lower level of Terminal 3 at JFK Airport (the "subject area"). On November 4, 2005, plaintiff filed a verified complaint against defendant Laro. Plaintiff alleges that Laro caused her to fall and is liable for her personal injuries because Laro: (i) after mopping, failed to set out warning signs indicating that the floor was slippery and/or close off the subject area; (ii) failed to properly train its employees with respect to mopping the floor so that it would not be wet; and (iii) caused a dangerous, hazardous and wet condition to exist in the subject area. Laro filed and served a third-party action against Linc on January 25, 2007. Plaintiff never brought a direct action against Linc. Laro's third-party complaint against Linc alleges that Linc violated its legal duty to exercise due care in preventing harm to the plaintiff, and that if Laro is held liable to the plaintiff, such liability will be due solely to the negligence of Linc, the third-party defendant. Laro claims that Linc's operation of the air conditioning unit caused water to form on the duct work located above the ceiling in the subject area, the water dripped off the duct work, filtered through the ceiling tiles, fell to the ground and caused plaintiff to fall. Further, Laro asserts that Line's operation of the air conditioning system created a "Misty Hallway Situation" during which the ceiling, walls and floor started to sweat, became slippery and caused the plaintiff to fall. The plaintiff alleges she slipped on a freshly mopped floor in the subject area. (Par. 14 of the Verified Complaint) Laro contends that Linc caused the plaintiff to fall because water fell from the duct work, under the control and operation of Linc, located above the subject area.
In support of Line's motion for summary judgment dismissing Laro's third-party complaint, Line submits an expert's opinion in the form of an affidavit sworn to January 30, 2008 by Klas Haglid, P.E. in which Mr. Haglid states that "[b]ased upon my education, my professional experience, my review of the materials described in paragraph 5, the test and analysis that I performed during my site visit described in paragraph 6 and, the commonly accepted standards in the industry, it is my professional opinion that: (1) to a reasonable degree of engineering certainty, based upon the design of the heating, air conditioning and ventilation system that serviced the area where plaintiff allegedly fell, Line's operation of the system could not cause the area, including the walls and the floors, which it services to become slippery and (2) to a reasonable degree of engineering certainty, based upon the design of the heating, air conditioning and ventilation system that serviced the area where plaintiff allegedly fell, Linc's operation of the system could not cause precipitation to form and subsequently fall from the duct work located above the area where plaintiff allegedly fell."
On a motion for summary judgment, the Court's function is to decide whether there is a material factual issue to be tried, not to resolve it. (Sillman v. Twentieth Century Fox Films Corp., 3 N.Y.2d 395, 404, 144 N.E.2d 387, 165 N.Y.S.2d 498 [1957]). A prima facie showing of a right to judgment is required before summary judgment can be granted to a movant. (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1986); Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]). The third-party defendant Linc has made an adequate prima facie show of entitlement to summary judgment. Once a movant has shown a prima facie right to summary judgment, the burden shifts to the opposing party to show that a factual dispute exists requiring a trial, and such facts presented by the opposing party must be presented by evidentiary proof in admissible form. (Friends of Animals, Inc. v. Associated Fur Mfgrs., Inc., 46 N.Y.2d 1065, 390 N.E.2d 298, 416 N.Y.S.2d 790 [1979]). Conclusory statements are insufficient. (Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980); see, Indig v. Finkelstein, 23 N.Y.2d 728, 244 N.E.2d 61, 296 N.Y.S.2d 370 (1968); Werner v. Nelkin, 206 A.D.2d 422, 614 N.Y.S.2d 66 [2d Dept., 1994]).
In a slip and fall case a plaintiff must demonstrate that the defendant created the condition or had actual or constructive notice of it. Proof of a recurring condition may satisfy the constructive notice criteria as to the defendant and third-party defendant. (See, Brown v. Linden Plaza Housing Co., Inc., 36 A.D.3d 742, 829 N.Y.S.2d 571 (2d Dept., 2007); Osorio v. Wendell Terrace Owners Corp., 276 A.D.2d 540, 714 N.Y.S.2d 116 [2d Dept., 2000]).
Laverne Chisholm (Chisholm) was an assistant manager employed by Laro for the past nine years. She was working in Terminal 3 at Delta Airlines at the subject area. Laro was responsible for general maintenance work in the terminal. It included keeping the floors in Terminal 3 at Delta Airlines clear, clean, and free of debris, liquids and other wet substances. According to Chisholm's testimony at her deposition when the air conditioning was on you would see leaks in the corridor floor in question (pg. 9, L 15-19); Laro would put down caution signs, cardboard boxes and mats when they observed the condition (pg. 10, L 12-13); she was not sure if in the summertime the floor was wet at least once or twice a week (pg. 10, L 14-19); when she observed the wet floor condition, the entire corridor was wet (pg. 11, L 14-16); prior to the date of the accident she had made complaints to Linc about the wet floor condition (pg. 12, L 3-15); prior to plaintiff's accident, Chisholm was aware of a male employed by Safeguard who slipped and fell at that same location (pg. 18, L 2-22); Chisholm used the hallway in question everyday and in two months prior to Ms. Marco's accident she would notice from "time to time" that the hallway floor was misty (pg. 20, L 15-25); in addition to noticing that the "very, very wet" hallway floor was a recurring condition, she also noticed that the walls in the hallway were wet and sweating and she complained to Linc that the entire area was wet (pg. 22, L 9-20); Chisholm would meet with Laro's porters and give them instructions to use dry mops in the subject hallway because of the misty condition and to use cardboard boxes and walk-off mats (pg. 32, L 3-18); Chisholm contacted Linc about the wet hallway because of drips she had seen from the air conditioner that she personally observed dripping from the ceiling in July of 2005, one month prior to plaintiff's accident (pg. 36, L 21; pg. 57, L 20); Linc responded to Chisholm's complaints and came to the accident location where Chisholm advised Line...
To continue reading
Request your trial