McGarrity v. Brooklyn Kings Plaza LLC

• Decision Date: 20 October 2022
• Docket Number: 519456/2018,No. 519456/2018
• Citation: McGarrity v. Brooklyn Kings Plaza LLC, 2022 NY Slip Op 33672(U), No. 519456/2018 (N.Y. Sup. Ct. Oct 20, 2022)
• Parties: EDWARD MCGARRITY and DEBRA MCGARRITY, Plaintiffs, v. BROOKLYN KINGS PLAZA LLC, Defendant.
• Court: New York Supreme Court

1

2022 NY Slip Op 33672(U)

EDWARD MCGARRITY and DEBRA MCGARRITY, Plaintiffs, v. BROOKLYN KINGS PLAZA LLC, Defendant.

No. 519456/2018

Supreme Court, Kings County

October 20, 2022

Unpublished Opinion

DECISION / ORDER

Hon Bernard J. Graham Supreme Court Justice

Recitation as required by CPLR 2219(a), of the papers considered on the review of this motion to: dismiss plaintiffs complaint pursuant to CPLR 3212.

Papers

Numbered

Notice of Motion and Affidavits Annexed.......................

1-2

Order to Show cause and Affidavits Annexed.............

Answering Affidavits...................................................

Replying Affidavits......................................................

Exhibits........................................................................

Other............................................................................

Upon the foregoing cited papers, the Decision/Order on this motion is as follows:

Defendant Brooklyn Kings Plaza LLC ("Kings Plaza"), has moved (seq. 2), pursuant to CPLR Section 3212, for an Order dismissing plaintiffs^[1] complaint upon the grounds that (1) the plaintiff will be unable to establish that the bench which allegedly caused plaintiff to fall was dangerous and/or defective; (2) the defendant did not create or have actual or constructive notice of the alleged condition that allegedly caused the accident; (3) the condition which allegedly caused the accident was open and obvious, not inherently dangerous and was readily observable through the use of one's senses.

Counsel for the plaintiff has opposed the relief sought by the defendant upon the grounds that the defendant created the dangerous condition and had notice of the condition. Counsel further contends that the question as to whether a dangerous or defective condition exists is usually reserved for the jury.

Background:

The plaintiff commenced the within action by the filing of the Summons and Complaint on or about September 27, 2018. Issue was joined by the service of an answer on behalf of the defendant Kings Plaza on or about October 22, 2018.

The law office of Shulman & Hill, PLLC, substituted for the office of Louis C. Fiabane, as counsel for the plaintiff, on or about January 17, 2019.

The deposition of the plaintiff was conducted on October 29, 2019. Michael McCarthy, the operations manager for the defendant submitted to an E.B.T. on January 8, 2020 on behalf of the defendant.

Non-party Debra McGarrity, (the spouse of the plaintiff) was deposed on June 30, 2020.

A Note of Issue and Certificate of Readiness was filed on behalf of the plaintiff on or about January 5, 2021.

Facts:

On June 14, 2018, the plaintiff was shopping with his wife at the Kings Plaza Mall. The plaintiff was alleged to have been walking with his wife on the second or upper floor of said Mall when his wife went to the restroom and he attempted to sit on a bench in the lobby area. This bench was described by plaintiff as being 2 ½ feet high and 4 feet long (see plaintiffs EBT p. 18-21). The plaintiff testified that when he tried to sit on the bench, it slid from under him (see plaintiffs EBT p. 22). The plaintiff further testified that he was able to get up on his own right away after the incident. When plaintiffs wife returned from the bathroom, they walked over to security to report the incident (see plaintiff EBT p. 26, 27).

The defendant contends that they regularly inspect the premises, including the area in question. The defendant maintains that benches^[2] are not bolted or affixed to the ground so they can be moved to enable sweeping and cleaning, as well as to accommodate public events and decorating for the holiday season (see McCarthy EBT p. 29-30, 33).

Parties' Contentions:

Here, the Court is presented with the issue as to whether Kings Plaza caused, created, or had prior actual or constructive notice of a dangerous and/or defective bench on the second floor near the restrooms in the Kings Plaza Mall.

In support of defendant's motion for summary judgment and a dismissal of this action, Kings Plaza asserts that they neither caused or created the alleged dangerous condition of the bench, nor had any actual or constructive notice of the alleged dangerous condition that plaintiff contends resulted in his fall. Kings Plaza also claims that the condition of the bench was open and obvious, not inherently dangerous, and readily observable by making reasonable use of one's sense.

In opposition, counsel for plaintiff argues that the defendant has not met its burden of proof that summary judgment and a dismissal of the action is appropriate. Plaintiff argues that defendant was aware the bench could shift and should have taken measures to prevent the bench at issue from shifting, claiming that a shifting bench is a dangerous condition. Counsel further asserts that due to the defendant's failure to secure the bench and prevent it from shifting, plaintiff fell and sustained serious physical injuries which required surgery to his lumbar spine as well as having to undergo physical therapy.

Discussion:

The moving party in a motion for summary judgment bears the initial burden of demonstrating a prima facie case of entitlement to judgment as a matter of law by submitting sufficient evidence to demonstrate the absence of any material issue of fact. Drago v. King. 283 A.D.2d 603, 725 N.Y.S.2d 859 [2d Dept. 2001]. Here, defendant Kings Plaza has offered deposition testimony from Michael McCarthy (Macerich Kings Plaza Operations Manager) ("Mr. McCarthy"), as well as the affidavits from Kevin McGrath (Allied Universal Manager) ("Mr. McGrath"), Bruno Viana (C&W Facility Services Inc.'s Maintenance Manager) ("Mr. Viana"), and Dean Wertheim (C&W Facilities Services Inc.'s Porter) ("Mr. Wertheim").

To establish a prima facie case against a property owner, plaintiff must be able to demonstrate that defendant either created the condition which was the cause of the accident or that it had actual or constructive notice of the condition. See Kane v. Human Services Center. Inc., 186 A.D.2d at 540). To maintain a viable action, plaintiff must establish that defendant failed to remedy the alleged condition after it had actual or constructive notice. See Gordon v. American Museum of Nat. Histr., 67 N.Y.2d 836, 501 N.Y.S.2d 646 (1986). The movant in a motion for summary judgment must show that, as a matter of law, it lacked actual or constructive notice of the alleged defective condition. See Ostuni v. East Rockaway Village Tavern, Inc., 238 A.D.2d 558 [2d Dept. 2007].

Actual notice may be found where the defendant created the condition or was aware of its existence prior to the accidents. See Pianforini v. Kelties Bum Steer, 258 A.D.2d 634, 635, 685 N.Y.S.2d 804 [2d Dept. 1999]. For constructive notice, a dangerous condition must be visible and apparent, and it must exist for a sufficient length of time prior to the incident to permit defendant's employees to discover and remedy it. See Negri v. Stop & Shop, 65 N.Y.2d 625, 491 N.Y.S.2d 151 (1985); Kane v. Human Services Center. Inc., 186 A.D.2d 539, 588 N.Y.S.2d 361 [2d Dept. 1992]. Proof of regular inspections and maintenance of the area in which an accident occurred is ordinarily sufficient to satisfy defendant's burden of showing absence of notice on a motion for summary judgment. Hagin v. Sears. Roebuck and Co., 61 A.D.3d 1264, 876 N.Y.S.2d 777 [3rd Dept. 2009]. This Court also recognizes that the mere happening of an accident does not establish liability under a negligence theory. See Lewis v. Metropolitan Transit Auth., 99 A.D.2d 246, 472 N.Y.S.2d 368 (1st Dept. 1984).

The defendant, Kings Plaza, has shown through the deposition testimony of Mr. McCarthy and the affidavits of Mr. McGrath, Mr. Viana, and Mr. Wertheim, that the bench was kept in a reasonably safe condition and that the accident was not caused by a defective condition with the bench.

The defendant claims that the deposition testimony of Mr McCarthy...