Washington v. Autumn Props. Ii, LLC.
| Decision Date | 09 September 2014 |
| Docket Number | Index No.: 305612/10 |
| Citation | 2014 NY Slip Op 32680 (U) |
| Parties | JERRY WASHINGTON and KEILA WASHINGTON, Plaintiffs, v. AUTUMN PROPERTIES II, LLC., and NATIONAL DISTRIBUTION ALLIANCE, Defendants. |
| Court | New York Supreme Court |
Present: Hon. Mary Ann Brigantti
DECISION/ORDER
The following papers numbered 1 to 6 read on the below motion noticed on May 21, 2014 and duly submitted on the Part IA15 Motion calendar of July 9, 2014:
Papers Submitted
Numbered
Defs.' Aff. In Support, Exhibits
1,2
Pls.' Aff. In Opposition, exhibits
3,4
Defs.' Aff. In reply, Exhibits
5,6
Upon the foregoing papers, the defendants Autumn Properties II, LLC. ("Autumn") and National Distribution Alliance ("NDA")(collectively "Defendants") move for summary judgment, dismissing the complaint of the plaintiffs Jerry Washington (individually "Plaintiff") aad Keila Washington (collectively with Jerry Washington, "Plaintiffs"), pursuant to CPLR 3212. Plaintiffs oppose the motion.
This matter arises out of an alleged trip and fall accident that occurred on February 13, 2010, at approximately 8:30PM, within a commercial warehouse owned by defendant Autumn and leased to commercial tenant NDA. At relevant times, Plaintiff was an independentcontractor of NDA, a newspaper delivery company. On the date of this incident, Plaintiff had arrived at the premises in order to take the delivery route of another independent contractor.
Plaintiff testified that on the night of the incident, he went inside of the warehouse to get papers and things together for his route. Upon entering the warehouse, there are power jacks and other equipment parked on its right side. When you walk further in, there are contractor's tables on the right and left, and a "clear walkway" between the tables. He described his work area as "tables on the left, tables on the right, and you have a walking passage in the middle." It was well-lit insids of the warehouse. He walked less than fifty feet from the door of the warehouse to the table on the right hand side of the warehouse. The open space between the tables was approximately 25 feet wide. Plaintiff noted that the space was left clear to permit vehicles to go though the warehouse and pick up papers for their route. There was nothing obstructing Plaintiff as he walked through this wide open space to his table.
Once at the table, Plaintiff began to prepare papers for his route. He was at the table for two to three minutes. Suddenly, a power failure occurred and all of the lights in the building went out and it became "pitch black" inside of the warehouse. Prior to the power outage, he had only seen one other person working in the warehouse. After waiting a few seconds, Plaintiff turned from the table towards the entrance where he walked into the building. He took a few steps forward and then tripped over the fork of a "power jack," that was in the 25-foot open space between the tables. Plaintiff testified that the warehouse's generator lights came back on less than ten seconds after his accident, and less than thirty seconds after the power failure occurred. He described the power jack, also referred to as a "pallet jack," as an "L -shaped" device operated with a motorcycle-type handle. He did not see the power jack in this particular location before his accident.
Prior to the accident, Plaintiff had noticed another person working in the warehouse. On prior occasions, he had noticed workers using the power jacks and other equipment. He testified that he had not seen the jack before he tripped, but heard a noise and believed that someone had been using it. When the jacks were not in use, they were kept in the area to the right of the v/arehouse near its entrance.
Michael Presto, CEO of defendant NDA, appeared for an examination before trial. Prestotestified that NDA used between 100-200 independent contractors to work at the premises. He testified that NDA also worked through a perpetual employment organization, and all of the employees were performing work on behalf of NDA and instructed by NDA. Importantly, he testified that NDA owned all of the forklifts and jacks in the warehouse. The only people authorized to use this equipment were the warehouse's general foreman and assistant foreman. Independent contractors, such as Plaintiff, were not authorized to use the equipment. He didn't know how many power jacks were at the warehouse or who was working at the warehouse on the date of this incident.
Jacqueline Monaco testified on behalf of Autumn. She had no knowledge as to the use of equipment inside of the premises, and testified that Autumn had no offices or operations within the warehouse. Defendants have also provided a copy of the commercial lease agreement between Autumn and NDA.
Defendants proffer various arguments in support of their motion for summary judgment. Defendants argue that there is no evidence to support Plaintiffs' claims that the building's power supply were inadequate or improperly maintained, or that Defendants were in any way responsible for the blackout. Defendants have provided, among other things, an affidavit from a Con Edison representative who confirms that there was a power outage throughout Mount Vernon on the date of the accident which was not caused by Defendants. Defendants argue that the power outage only lasted for approximately 30 seconds, and therefore they had no time to remedy the condition before this trip-and-fall. Even if they had actual notice of the location of the power jack, Defendants contend that they had no reasonable amount of time to address the darkness in the warehouse in the mater of seconds between the outage and the fall, citing Solan v. v Great Neck Union Free School Distr., 43 A.D.3d 1035 (2nd Dept. 2007). But for the power outage, the power jack would have been an open and obvious hazard that Plaintiff could have reasonably avoided. Defendants contend that it was not reasonably foreseeable that a power outage would occur, or that Plaintiff would attempt to exit the building during the brief period when the lights were out. Moreover, Defendants assert that Plaintiff was not supposed to work on the night of the accident, should not have been inside of the premises, and therefore there is no duty of care flowing from Defendants to Plaintiff. They add that Plaintiff voluntarily exposedhimself to danger by attempting to leave the building during the blackout and walking blindly in the darkness. The blackout constituted a superceding cause of this accident that served to relieve Defendants from any liability for this accident.
In opposition, Plaintiff argues that Defendants have not addressed whether they can be charged with negligence for allowing the jack to be left unattended in a place where persons would walk. Their only arguments to support dismissal relates to allegations with reference to the lack of light. Plaintiff asserts that this case is distinguishable from Solan, since in that case, there was no claim of negligence in the placement or maintenance of a concrete parking divider. The only claim related to the cause of the darkness and an alleged breach of duty to provide a backup generator. Plaintiff argues that any open and obvious nature of the hazard did not eliminate Defendants' duty to keep the property reasonably safe. Plaintiffs argue that any finding that the jack was open and obvious would only relate to comparative negligence - but the blackout removed any potential comparative negligence on the part of the plaintiff. It was foreseeable for Plaintiff to leave the building during the blackout. Plaintiffs contend that the blackout was not an intervening or superceding action that severed any nexus between Defendants' negligence and the injury.
To be entitled to the "drastic" remedy of summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case." (Winegrad v. New York University Medical Center, 64 N.Y.2d 851 [1985]; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id., see also Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Facts must be viewed in the light most favorable to the non-moving party (Sosa v. 46th Street Development LLC, 101 A.D.3d 490 [1st Dept. 2012]). Once a movant meets his initial burden, the burden shifts to the opponent, who must thenproduce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 N.Y.3d 499 [2012]). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire's Hospital, 82 N.Y.2d 738 [1993]).
It is well established that those exercising control over land must keep the premises in a "reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Peralta v. Henriquez, 100 N.Y.2d 139, 144 [2003] [citation and internal quotation marks omitted]). At the outset, Plaintiff has offered no evidence to demonstrate that defendant Autumn, was in any way negligent. The submitted lease confirms that Autumn was an out-of-possession landlord who was not responsible for the equipment located within the warehouse, or the power outage that occurred on the premises (Chapman v. Silber, 97...
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