Pomahac v. Trizechahn 1065 Ave. of Ams., LLC

• Decision Date: 18 August 2009
• Docket Number: 241.
• Citation: 884 N.Y.S.2d 402,2009 NY Slip Op 06223,65 A.D.3d 462
• Parties: BRUCE POMAHAC, Respondent, v. TRIZECHAHN 1065 AVENUE OF THE AMERICAS, LLC, et al., Appellants, et al., Defendants. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

65 A.D.3d 462

884 N.Y.S.2d 402

2009 NY Slip Op 06223

BRUCE POMAHAC, Respondent, v. TRIZECHAHN 1065 AVENUE OF THE AMERICAS, LLC, et al., Appellants, et al., Defendants. (And a Third-Party Action.)

241.

Appellate Division of the Supreme Court of New York, First Department.

Decided August 18, 2009.

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered September 17, 2007, which, insofar as it denied defendants-appellants' motions for summary judgment, reversed, on the law, without costs, the motions granted and the complaint and all cross claims as against them dismissed. The Clerk is directed to enter judgment accordingly.

The accident giving rise to this action occurred at approximately 9:00 A.M. on October 29, 2003 in the lobby of a building managed by defendant TrizecHahn and maintained by defendant ABM. Plaintiff testified at his deposition that he opened the exterior door to the building, walked through a small vestibule, then passed through the interior door leading to the lobby. A mat covered the vestibule floor and a three-to-five-foot long mat was placed on the lobby floor immediately past the interior door. The terrazzo lobby floor appeared to plaintiff to be wet, which he attributed to tracked-in rainwater from a storm that produced over an inch and a half of rain. The storm had begun several hours before the accident and ended either shortly before or after it. As he entered the lobby, plaintiff noticed a yellow "caution" warning sign approximately 15 feet away and a man mopping the floor near the sign. As he walked past the man mopping the floor, plaintiff slipped and fell; there was no mat where plaintiff fell. A security guard monitoring the lobby testified at his deposition that someone spilled a cup of coffee in the area where plaintiff fell only moments before the accident and that the man mopping the floor was cleaning that spill at the time of the accident.

Plaintiff commenced this action against, among others TrizecHahn and ABM, claiming that they failed to maintain the lobby floor in a reasonably safe condition. The principal theory of plaintiff's case is that defendants failed to place additional mats in the lobby, including a mat covering the spot where he fell. Although plaintiff asserts that his fall was precipitated by tracked-in rainwater, he claims that the source of the moisture on the floor where he fell is irrelevant. He reasons that if additional mats had been placed in the lobby, the moisture, whatever its source, would have been absorbed. ABM moved for summary judgment dismissing the complaint and TrizecHahn's cross claims against it, as well as TrizecHahn's third-party action against it. TrizecHahn cross-moved for summary judgment dismissing the complaint and ABM's cross claims against it. After initially granting these motions, Supreme Court granted plaintiff's motion to reargue those motions and, on reargument, the court denied the motions of ABM and TrizecHahn.

ABM and TrizecHahn each made a prima facie showing of entitlement to judgment as a matter of law on the ground that, regardless of the source of the moisture, they took reasonable precautions to remedy the wet condition on the lobby floor. The undisputed evidence demonstrates that two mats were placed in the entranceway of the building, one in the vestibule and one on the lobby floor immediately past the threshold of the interior door; at least one yellow "caution" sign was placed in the lobby; and an ABM employee had mopped the floor several times before the accident occurred and was mopping it at the time of the accident. Thus, if the source of the moisture was tracked-in rainwater, defendants took reasonable measures to remedy it (see Amsel v New York Convention Ctr. Operating Corp., 60 AD3d 534 [2009]; Ford v Citibank, N.A., 11 AD3d 508 [2004]; Sook Ja Lee v Yi Mei Bakery Corp., 305 AD2d 579 [2003]; see also Gale v BP/CG Ctr. I LLC, 49 AD3d 454 [2008]).^* Similarly, if the source of the moisture was spilled coffee, defendants acted reasonably. According to the security guard who was stationed in the lobby, the coffee was spilled moments before the accident in the area where plaintiff fell. Almost immediately after the coffee was spilled, an employee of ABM placed a yellow "caution" sign in the area of the spill and began mopping the area.

In opposition, plaintiff asserts that ABM and TrizecHahn failed to follow a practice they had established in dealing with tracked-in rainwater, a practice that plaintiff claims could have prevented the accident. Specifically, plaintiff demonstrated that defendants had a practice of placing three mats on the lobby floor when it was raining; these mats would be in addition to the mat in the vestibule, which was always present. Two of the mats would be placed side-by-side on the floor immediately past the interior door and the third mat would be placed at the end of the first two mats. Testimony regarding the length of the mats varied but demonstrated that each mat was between 10 and 20 feet long. Thus, while we cannot know how far into the lobby the mats would run if configured in the manner outlined above, we do know that the mats would run at least 20 feet into the lobby if so configured. Because plaintiff testified that he fell approximately 15 feet from the interior door, the mats, if placed in accordance with defendants' usual practice, may have covered the area in which the accident occurred.

Contrary to plaintiff's contention, that defendants had a practice of placing a certain number of mats in a particular fashion in inclement weather and failed to adhere to that practice at the time of the accident is insufficient to raise a triable issue of fact with respect to defendants' negligence. A defendant's failure to adhere to its own internal guideline or policy may be some evidence of negligence (see 1A NY PJI3d 2:16, at 254 [2009]). But where the internal guideline or policy requires a standard that transcends the standard required by the duty of reasonable care, a defendant's breach of the guideline or policy cannot be considered evidence of negligence (Gilson v Metropolitan Opera, 5 NY3d 574, 577 [2005], citing Sherman v Robinson, 80 NY2d 483, 489 n 3 [1992]; Lesser v Manhattan & Bronx Surface Tr. Operating Auth., 157 AD2d 352, 356 [1990] ["While internal operating rules may provide some evidence of whether reasonable care has been taken and thus some evidence of the defendant's negligence or absence thereof, such rules must be excluded, as a matter of law, if they require a standard of care which transcends the area of reasonable care"], affd sub nom. Fishman v Manhattan & Bronx Surface Tr. Operating Auth., 79 NY2d 1031 [1992]). The reasonable care standard does not require a defendant to cover all of its floors with mats to prevent a person from falling on tracked-in moisture (see Negron v St. Patrick's Nursing Home, 248 AD2d 687 [1998]; Kovelsky v City Univ. of N.Y., 221 AD2d 234 [1995]; see also Keum Choi v Olympia & York Water St. Co., 278 AD2d 106 [2000]); nor does it require a defendant to place a particular number of mats in particular places (see generally Amsel, supra; Ford, supra; Sook Ja Lee, supra). Instead, all of the circumstances regarding a defendant's maintenance efforts must be scrutinized in ascertaining whether the defendant exercised reasonable care in remedying a dangerous condition. Thus, defendants' internal policy of placing three mats in a particular configuration and their failure to follow that voluntarily-adopted policy cannot serve as a basis of liability (see Newsome v Cservak, 130 AD2d 637 [1987]). We note as well that plaintiff's position relies on the erroneous proposition that defendants could satisfy their duty of reasonable care only by adhering to their prior practice, not by promptly mopping up the moisture.

Nor did the affidavit of plaintiff's engineer raise a triable issue of fact with respect to defendants' liability. The engineer stated that defendants should have placed a mat in the area where plaintiff fell because the terrazzo floor, when wet, is extremely slippery. The engineer based this opinion on, among other things, a reading of the coefficient of friction of the lobby floor taken several months after the accident. The engineer's affidavit fails to raise a triable issue of fact because his assertion that a mat was required to be placed in the area where plaintiff fell is unsupported by any generally accepted engineering standard or practice (Jones v City of New York, 32 AD3d 706 [2006]). Moreover, the engineer's opinion is entitled to no weight because he did not identify the basis for the coefficient of friction value he utilized as a standard and did not demonstrate that, at the time he measured the coefficient, the lobby floor was in the same condition as it was on the date of the accident or a substantially similar condition (see Jenkins v New York City Hous. Auth., 11 AD3d 358, 360 [2004]).

The dissent emphasizes the issue of whether defendants had notice of the condition of the floor, finding a triable issue of fact on this score. The issue of notice, however, is irrelevant because defendants do not assert that they are entitled to summary judgment on the ground that as a matter of law they did not have notice of the condition of the floor. TrizecHahn argues that it is entitled to summary judgment because it took reasonable precautions to remedy the wet condition on the lobby floor. ABM makes that same argument and additionally contends that it is entitled to summary judgment because it owed no duty of care to plaintiff.

As noted above, it is well established both that a defendant's breach of its own internal policy cannot be considered evidence of negligence where that policy requires a standard that transcends the standard required by the duty of reasonable care, and that the reasonable care standard does not require a defendant to cover all of its floors with mats to prevent a...