Santiago v. JP Morgan Chase & Co.

• Decision Date: 26 June 2012
• Parties: Jose SANTIAGO, Plaintiff–Appellant, v. JP MORGAN CHASE AND COMPANY, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 642
947 N.Y.S.2d 103
2012 N.Y. Slip Op. 05113

Jose SANTIAGO, Plaintiff–Appellant,
v.
JP MORGAN CHASE AND COMPANY, Defendant–Respondent.

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

June 26, 2012.

Elefterakis & Elefterakis, P.C., New York (Nicholas Elefterakis of counsel), for appellant.

Maloof, Lebowitz, Connahan & Oleske, PC, New York (Charles J. Gayner of counsel), for respondent.

MAZZARELLI, J.P., FRIEDMAN, CATTERSON, RENWICK, RICHTER, JJ.

[96 A.D.3d 642]Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered July 13, 2010, which granted defendant's motion for summary judgment dismissing the complaint, reversed, on the law, without costs, and the motion denied.

Plaintiff seeks damages for personal injuries he sustained when he allegedly slipped and fell on the wet tile floor of defendant's ATM vestibule. In support of its motion for summary judgment, defendant relied primarily upon plaintiff's deposition testimony. Plaintiff testified that his accident occurred on February 25,

[947 N.Y.S.2d 104]

2005, at around 11:00 or 11:30 A.M., when he entered the ATM lobby at defendant's bank. At the time, he was wearing rubber boots. It was not raining or snowing, although it had snowed the night before, and it was “icy and slushy” that morning. There was some form of precipitation on the sidewalk in front of the doorway to the bank, which plaintiff described as “[m]elted ice.” The sidewalks in the immediate area were intermittently covered with slush or melted ice and salt.

Plaintiff's accident occurred after he had entered the bank lobby and taken four or five steps inside, past the threshold area. As he walked into the lobby, he wiped his feet on a mat or rug before stepping onto the tiled portion of the floor. He fell as he walked towards the ATMs. Both of plaintiff's feet slipped, causing him to fall backwards. His back and head hit the ground [96 A.D.3d 643]first, causing him to feel weak and dizzy, although he did not lose consciousness.

Plaintiff did not notice the slippery condition of the floor until he fell. There were no signs warning of a wet floor and the lighting conditions were “clear.” When the ambulance arrived at the bank, plaintiff realized that his clothes, particularly, the back of his pants, were wet.

Defendant also relied upon the deposition testimony of its facilities manager, Paul Deri, as to its floor covering procedures. Deri testified that the carpet or runner in the ATM vestibule is set into the floor and is not removable and that it is there for customers to wipe their feet on before they enter the main branch. The mat stretches from the entry door, through the ATM vestibule, and up to the interior door leading to the main lobby. It does not run from the entrance to the ATMs. Deri explained that additional mats would “perhaps” be placed in the ATM vestibule “if weather required it and if [they] were available.” He said that the usual and customary procedure for dealing with inclement weather is “to have [our] mats out to keep people's feet dry and clean and things [safe].” Branches could request additional cleaning services “[i]f things got significantly bad.” These procedures were not part of any written rule or policy, however, and were typically left to the branch manager's discretion. On the day of the accident, there were no mats in the ATM vestibule.

In opposition to defendant's motion, plaintiff relied upon his deposition, as well as that of nonparty witness Patrick Carroll, a former employee of defendant. Carroll testified that in February 2005, he was a vice president, assigned to manage the branch where plaintiff's accident occurred and was present on the day of the accident, although he did not see the accident happen. Carroll testified further that the branch's customary procedure for inclement weather was to place a yellow tent sign in the main lobby cautioning customers as to the wet floors. During the day, if there was a lot of water in the ATM area, someone would be told to mop it up, but no particular person had the responsibility to maintain the cleanliness of the vestibule. Carroll specifically stated that when it was wet outside, the tiled area between the embedded mat and the ATM machines would “absolutely” became wet. He said that on the day of the accident, no yellow tent sign was placed in the ATM lobby.

When he reached the ATM lobby, Carroll did not notice any water or ice near the man on the floor. His assumption was that he had slipped on ice or snow that he had carried in from outside on the bottom of his shoes. He explained, “If you are not standing on the rug and you are on the tiles, it will...