Merrick v. Nata Laundromat, 2007 NY Slip Op 33199(U) (N.Y. Sup. Ct. 9/26/2007)

• Decision Date: 26 September 2007
• Docket Number: No. 014268-05.,014268-05.
• Citation: 2007 NY Slip Op 33199
• Parties: PAMELA MERRICK, Plaintiff. v. NATA LAUNDROMAT and/or NATA LAUNDRY/FOREST AVENUE LAUDROMAT and GLEN STAR REALTY, LLC. Defendants.
• Court: New York Supreme Court

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2007 NY Slip Op 33199(U)

PAMELA MERRICK, Plaintiff. v. NATA LAUNDROMAT and/or NATA LAUNDRY/FOREST AVENUE LAUDROMAT and GLEN STAR REALTY, LLC. Defendants.

No. 014268-05.

Supreme Court of the State of New York, Nassau County.

September 26, 2007.

DANIEL MARTIN.

Motion by defendant Nata Laundromat and/or Nata Laundry/Forest Avenue Laundromat (collectively referred to herein as "Nata") for summary judgment dismissing all claims and cross-claims against it pursuant to CPLR 3212 is denied.

Motion by defendant Glen Star Realty, LLC. ("Glen"), for an order discontinuing the action against it pursuant to CPLR 3217(b), and granting summary judgment dismissing the cross-claim against it by Nata, is granted.

Glen's informal request for summary judgment on its cross-claim against Nata for common law and contractual indemnification is denied as premature with respect to common law indemnification, and granted as to contractual indemnification, to the extent that Glen shall not be reimbursed by insurance. Glen's further informal request for summary judgment against Nata for breach of its contractual obligation to procure insurance is denied as Glen has failed to allege such a cross-claim.

Plaintiff was seriously injured when she fell down a flight of stairs at a laundromat owned by defendant Glen and operated by defendant Nata. The subject stairway was located in the noncustomer area of the laundromat, where plaintiff was directed to look for the duffel bag in which she had delivered clothes to be laundered. Plaintiff testified that she walked through the doorway into the non-customer area, and then was stepping to the right and looking straight ahead at the shelves as she went (Merrick transcript, p.22). As she was moving to the right and looking at the shelves, she did not see the stairs to her right and fell down (Merrick transcript, p.24). In her amended bill of particulars (Exhibit Q to Nata's moving papers) plaintiff alleges that her fall was caused by a "trap" consisting of "the negligent installation, design and placement of shelving in the rear room and laundry baskets, filled bags with laundry and other accumulated debris which hid the staircase" from her view.

Nata moves for summary judgment dismissing the complaint and all cross-claims against it on the grounds that the subject staircase was "open and obvious." Nata argues that it has no liability for conditions that are open and obvious and not inherently dangerous [Salerno v Street Retail, Inc., 38 A.D.3d 515 (2^nd Dept. 2007); Webber v. Miller, 17 A.D.3d 352 (2^nd Dept. 2005)]. The issue presented by this case is whether or not the staircase at issue was obvious, or whether it was a trap for the unwary.

Summary judgment is the procedural equivalent of a trial [Capelin Associates Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341 (1974)]. This drastic remedy should not be granted where there is any doubt as to the existence of triable issues of fact [Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957)]. The evidence must be viewed in the light most favorable to the opponent [Negri v. Stop and Shop, Inc., 65 N.Y.2d 625, 626 (1985)], and the court should refrain from resolving issues of credibility [Capelin Associates at 341].

At the outset the Court must advise the parties that the copies of the photos of the subject laundromat, annexed as Exhibit J to Nata's moving papers, are of such poor quality that they were of no evidentiary value.

In opposition to Nata's motion plaintiff submits a lengthy affidavit, which essentially supplements her deposition transcript. In the affidavit she states that from her view, at the time of the accident, she could not see the staircase (Merrick affidavit, par. 13), and she walked sideways looking straight ahead at the shelving and bags extending from it, in search of her daughter's green duffel bag (Merrick affidavit, par. 14). Then,

at the end of the shelving there were still stacked bags and baskets in front of me on the floor which bags I was looking at. When I took one or two more steps (I had already taken approximately five steps), suddenly without warning my body started to fall to my right and sideways into the air going down the cement staircase that was still perpendicular to me.

* * *

I did not trip. I did not slip. I avoided the encumbrances in front of me. I looked in the direction that I was supposed to look in. I did not look elsewhere which is where the unknown staircase was. I was not supposed to look elsewhere. Rather than being inattentive, I was attentive. I was looking where I was going and where I was going was along the shelving in front of me (Merrick affidavit, par. 16 and 32).

This is not a case where the plaintiff is unable to identify the cause of her fall [cf. Reed v. Piran Realty Corp., 30 A.D.3d 319 (1^st Dept. 2006), lv app den 8 N.Y.3d 801 (2007); Hennington v. Ellington, 22 A.D.3d 721 (2^nd Dept. 2005)].

Viewing the evidence in the light most favorable to the plaintiff, the Court finds that triable issues of fact are presented as to: (1) whether Nata's employee directed plaintiff to inspect the shelving without any warning of the existence of the stairway, (2) whether the subject stairs were a dangerous trap for the unwary because of the close proximity of the shelving and baskets and bags to the unprotected entrance to the stairway [Wrubel v. Rose Boutique IL Inc., 13 A.D.3d 264 (1^st Dept. 2004); see, Chafoulias v. 240 E. 55^th Street Tenants Corp., 141 A.D.2d 207 (1^st Dept. 1988)], and (3) the role of plaintiff's comparative fault [Holly v. 7-Eleven, Inc., 40 A.D.3d 1033 (2^nd Dept. 2007); Luksch v. Blum-Rohl Fishing Corp., 3 A.D.3d 475 (2^nd Dept. 2004)]. Consequently Nata's motion for summary judgment dismissing the complaint and all crossclaims against it must be denied.

Glen is the out-of-possession owner, against whom plaintiff has agreed to discontinue the action with prejudice (Exhibit F to Glen's moving papers). However Nata refused to discontinue its cross-claim against Glen for common law indemnification (Exhibit C to Glen's moving papers). For this reason Glen seeks an order pursuant to CPLR 3217(b) discontinuing the action...