Misook Song v. Costco Wholesale

• Citation: 2021 NY Slip Op 32981 (U)
• Decision Date: 08 June 2021
• Docket Number: Index 611119/18
• Parties: MISOOK SONG, Plaintiff, v. COSTCO WHOLESALE, Defendant.
• Court: United States State Supreme Court (New York)

2021 NY Slip Op 32981(U)

MISOOK SONG, Plaintiff,
v.
COSTCO WHOLESALE, Defendant.

Index No. 611119/18

Supreme Court, Nassau County

June 8, 2021

Unpublished Opinion

Motion Date: 01/25/2021

DENISE L. SHER, ACTING SUPREME COURT JUSTICE

The following papers have been read on this motion:

Papers Numbered Notice of Motion, Affirmation and Exhibits.................1

Affirmation in Opposition and Exhibits......................................................2

Reply Affirmation and Exhibits and Memorandum of Law........................3

Upon the foregoing papers, it is ordered that the motion is decided as follows:

Defendant moves, pursuant to CPLR § 3212, for an order granting summary judgment dismissing plaintiffs Verified Complaint. Plaintiff opposes the motion.

In this action, plaintiff seeks to recover for injuries she sustained on June 22, 2018, between 10:00 a.m. and 11:00 a.m., when she was allegedly caused to slip and fall upon a liquid condition on the floor of the Costco store located at 1250 Old Country Road, Westbury, County of Nassau, State of New York. See Defendant's Affirmation in Support Exhibit C.

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Plaintiff commenced the instant action with the filing of a Summons and Verified Complaint on or about August 17, 2018. See Defendant's Affirmation in Support Exhibit A. Issue was joined by defendant on or about August 29, 2018. See Defendant's Affirmation in Support Exhibit B.

In support of the motion, counsel for defendant submits, in pertinent part, that, "[t]he within motion respectfully seeks dismissal of the plaintiffs complaint asserted against Costco because the annexed deposition testimony of the plaintiff Misook Song, Costco manager David St. Clair, in addition to the attached affidavit of Costco manager David St. Clair, and evidence in this matter establish that Costco did not cause or create the subject liquid condition, and did not otherwise have either actual or constructive notice of said condition. Plaintiff does not and could not assert in her sworn testimony that Costco caused and created the subject liquid condition. She earnestly admitted that they had no first-hand knowledge of the condition or its cause before Ms. Song slipped and fell and acknowledge that Ms. Song therefore did not/could not have placed Costco on actual notice of the condition. As such, Ms. Song's ability to theoretically raise a triable issue of fact rest (sic) solely on whether she can effectively assert a constructive notice claim in this premises liability matter. However, as noted and documented in detail below and in the attached admissible deposition testimony, the exhibits and sworn affidavit of Mr. St. Clair, Costco both as a matter of custom and practice generally, and more importantly, specifically on the actual date of the incident performed consistent, frequent and thorough (sic) of the subject location including the area/zone where plaintiff fell on June 22, 2018. The spill further lacked any dirt, debris, or any indicia that it had been present for long prior to the accident. As such, Costco has further affirmatively established as a matter of law that they were not on constructive notice of said spill or that they should have been aware of it with enough time to have addressed

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the spill, and as such, for these reasons, consistent with the case law cited below, plaintiffs Complaint and the claims asserted against Costco should respectfully be dismissed."

In support of the motion, defendant submits the transcript from plaintiffs Examination Before Trial ("EBT") testimony. See Defendant's Affirmation in Support Exhibit F. Counsel for defendant asserts that plaintiff testified, in pertinent part, that, "the accident occurred on June 22, 2018 inside the Costco in Westbury, New York. The accident occurred in the morning between 10:00 and 11:00 a.m.... On the date of the accident, the weather was clear, and the plaintiff wore 'flip-flops' (footwear).... The accident occurred in the pizza stand area in the front of the warehouse store.... The plaintiff and her friend, Joyce Park, had purchased items at the Costco store and placed an order for food at the pizza stand prior to the accident.... In addition to the food, Ms. Song ordered a drink and was walking to the soda fountain prior to the accident.... Ms. Song described the flooring in the area as gray and appearing to be smooth polished cement.... Ms. Song testified that the area was well lit and she did not have difficulty seeing.... Prior the accident, Ms. Song was in the area where the accident occurred for approximately 10 minutes. While in the pizza stand area, she observed other people in the area eating and drinking.... At no time prior to the accident did Ms. Song observe anything on the ground in the area.... As Ms. Song was walking towards the soda fountain carrying a cup, she slipped and fell forward.... After Ms. Song fell, she saw water on the ground.... Ms. Song testified that she saw water ahead of where she fell that was distinct from the area where she fell.... Later in the deposition, Ms. Song admitted that the water that she saw was ahead of and distinct from the area where she had fallen and that she was not sure whether she ever saw the liquid that she allegedly slipped on.... Ms. Song did not know what color the liquid was.... Additionally, she could not say whether the liquid was clear, nor could she describe the size of the wet spot on the

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floor.... Ms. Song did not know how the water came to be on the floor but believed another customer might have spilled it, though admittedly she did not observe any spill occur.... Moreover, Ms. Song did not know how long the liquid was present on the floor prior to the accident.... Prior to the accident, as plaintiff was walking to the soda fountain, there was nothing obstructing plaintiffs view.... Ms. Song did not know if any of her clothing was wet after the accident.... Ms, Song did not see any Costco employees in the area at the time of the accident., .. Approximately 3 to 5 minutes after the accident, plaintiff saw a Costco employee.... The Costco employee helped her up from the floor.... The Costco employee asked the plaintiff if she needed him to call an ambulance and plaintiff said that no ambulance was needed because she was going to be okay.... The Costco employee asked her to write out an accident report.... The Costco employee called out the manager of the pizza stand and told the manager of the pizza stand about the accident and that the liquid needed to be cleaned.... Prior to being called over to the plaintiff after her fall, the pizza stand manager was behind the counter which was approximately 10 feet away from where the accident occurred.... Plaintiff did not make any prior complaints and was not aware of any prior complaints made to Costco regarding liquid on the floor." See Defendant's Affirmation in Support Exhibits F and G.

Also in support of the motion, defendant submits the transcript from the EBT testimony of David St. Clair ("St. Clair"), who testified on behalf of defendant, along with an affidavit from him. See Defendant's Affirmation in Support Exhibits I and J. Counsel for defendant asserts that St. Clair testified, in pertinent part, that he "has worked for Costco since 1995. Currently, and at the time of plaintiff s accident, he was a food service manager for the subject Costco warehouse store located at 1250 Old County Road, Westbury, a position he had held for approximately five years.... Mr. St. Clair was working at the subject Costco at the time of plaintiff s accident, and

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he has an independent recollection of meeting with plaintiff following the same.... As food service manager, he makes schedules for food court employees, tracks the attendance of food court employees, makes sure food service areas are clean, trains employees on safety, and upholds cleaning and safety guidelines.... Generally, Mr. St. Clair has been trained to clean up hazards as soon as he sees them.... Further, all Costco employees are trained to be on the lookout for spills and other conditions on the floor, and were required to report any observations of spills, leaks, and/or slip hazards, and any customer complaints of spills, leaks, and/or slip hazards inside the store and immediately correct the condition.... Additionally, Mr. St. Clair affirmed that if there is a spill an employee will either clean it immediately or remain in the area to warn others of the spill until someone can arrive with cleaning supplies.... Each day, food service members performed daily periodic inspections of the food court area every 20 to 30 minutes.... In addition to the routine inspections performed by the food service employees, a member service employee performs floor walk inspections of the entire store including the food court on an hourly basis.... On the date of plaintiff s accident, Mr. St. Clair met plaintiff at the area of the accident shortly after the accident occurred. At that time, Mr. St. Clair observed the plaintiff seated on a bench near the soda machine in the food court and observed small drops of water on the concrete floor.... The water looked like droplets which Mr. St. Clair testified was a small amount of water that was difficult to see.... Additionally, the plaintiff did not appear to be wet.... Mr. St. Clair avers in his affidavit that he was personally present in the area less than 20 minutes prior to plaintiffs accident, personally inspected the floor in the area, and observed no spills, water, wetness, or other condition on the floor but instead observed the floor to be clean and dry.... Based on Mr. St. Clair's personal knowledge and discussions with Costco staff, on June 22, 2018, prior to plaintiffs alleged accident, no customers ever reported or complained of any

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leaks, spills, and/or slip hazards on the floor in or around the food court to any Costco employees.... Further, based on Mr. St....