April 5, 2013
PETER FAMA, Plaintiff,
CITY OF NEW YORK and NYC DEPT. OF SANITATION, Defendants. Index No. 103419/2011
MARGARET A. CHAN JUDGE.
Plaintiff, a sanitation employee of defendant New York City Department of Sanitation (DOS), sustained personal injuries from a slip and fall inside the garage that was capable of housing about eight sanitation trucks. Plaintiff claimed his fall was caused by the recurring diesel oil spills in the garage. Defendant City of New York moved for summary judgment on the grounds that plaintiff failed to show that defendants had actual or constructive notice of the alleged condition that caused the fall.
On September 22, 2010, the day of the accident, plaintiff was working at the DOS Manhattan 2 garage, where his assignment that day was to prepare the DOS trucks for maintenance, which preparation included cleaning and power washing the trucks. According to plaintiff, three hours into his work day, which started at 4:00 pm, he slipped on a spill on the floor and fell. He was between five to ten feet away' from the power washer located in the middle of the garage. He believed the spill, which covered a three feet by three feet area, was diesel fuel because his clothes smelled of it and the washer is powered by it. He did not know how diesel fuel could have been spilled there, but surmised that there may have been a leak in the power washer or someone could have spilled it on the way from the pump to the power washer. It was up to whomever was using the power washer to fill it up when he/she was done using the power washer. This task entailed filling up a five gallon container from the gas pump outside the garage and pouring the fuel into the power washer. Sometimes the power washer was brought out to the pump to fill up.
In his EBT dated January 13, 2012, plaintiff stated he was five, six feet, maybe less, from the power washer (p58, line 9); in his 50-h hearing, he stated he was maybe ten feet away (pl5 line 23)
Plaintiff was the only cleaner in that garage that shift, however, other cleaners may use the power washer if the power washer in the other garage was not working. There was no other workers using his power washer during his shift, but he did not know about the shift before his. However, it was not unusual to see hoist oil or diesel fuel on the floor, and plaintiff had complained of this about once a week. When oil or fuel on the floor is observed, his supervisor would direct him to clean it up with speedy dry. His supervisor generally makes a routine inspection at the start of his 4:00 pm shift. But, as his supervisor was not at work that day, plaintiff did not know if the replacement supervisor did an inspection. However, according to Michael Perrotta, the supervisor on duty on the day of the accident, there is an unwritten policy that sanitation workers are to put speedy dry on oil/grease areas immediately when they observe such conditions. When plaintiff reported his accident to him, Perrotta inspected the area and put speedy dry on the puddle. Perrotta observed that the area and a truck was wet and the power washer had been in use since the nozzle on it was also wet. Thereafter, plaintiff timely filed a notice of claim; a GML § 50-h hearing was held on March 11, 2011. The instant action was commenced on or about March 21, 2011.
As a preliminary matter, plaintiff urges this court to deny defendants' motion as untimely. Pursuant to the Case Scheduling Order, the summary judgment motion was to be filed by October 30, 2012; the instant motion was filed on November 14, 2012. Corporation Counsel explains that the delay was due to Superstorm Sandy which caused closures of both the courthouses and offices in the affected downtown area. Plaintiffs attorney is well aware of the difficulty as his office is in Battery Place, and sympathizes with Corporation Counsel, but nonetheless finds a two-week delay to be unreasonable. Plaintiffs attorney opined that a one-week delay was understandable as that was when the courthouses were closed. This court disagrees that a delay of another week is unreasonable given the difficulty of getting offices running even the week after the power returned to parts of downtown Manhattan. Further, there is no showing that the delay prejudiced plaintiff. Thus, defendants' motion will be addressed as follows.
"On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party. Summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action" (Sosa v 46th Street Development LLC, 101 A.D.3d 490, 492-493 quoting Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503  [internal quotation marks omitted).
The crucial issue here is whether defendants had notice of the dangerous condition. The undisputed basic facts are that plaintiff fell on diesel fuel on the floor in the garage where he was assigned to clean DOS trucks. Defendants argue that the facts in this case are virtually the same as those in Mercer v City of New York (223 A.D.2d 688 [2d Dept 1996]). Mercer clearly states that the mere fact there is fuel on the floor does not give rise to a cause of action for negligence. And to pursue such a claim, plaintiff is required to show that defendant had notice, actual or constructive, of the dangerous condition or that it caused the condition (id. at 689-690). "Accordingly, ' [e]xcept in cases where the defendant created the condition, thus constituting actual notice to establish a prima facie case, a plaintiff must prove actual or constructive notice of the dangerous or defective condition and a reasonable time within which to correct or warn about its existence'" (id. quoting Lewis v. Metropolitan Tramp. Autk, 99 A.D.2d 246, 250 qff'd 64 N.Y.2d 670, 671 ).
In Mercer, plaintiff, a DOS dump truck driver, reporting to work at 6:45 a.m. for his 7:00 a.m. shift, slipped and fell on a puddle of grease that was about five feet long and a bit shorter in width inside a garage that stored, serviced, and maintained about forty-four vehicles. No one witnessed the accident and only plaintiff saw the puddle of grease (Mercer, 223 A.D.2d at 688, 690-691). The garage supervisor admitted that oil often would leak from the parked vehicles. That was why the garage floor was cleaned every morning at about 7:30 a.m., after the vehicles were pulled out of the garage. An oil patch the size as described by plaintiff could only exist where a vehicle was being serviced by mechanics, who cleaned up any spills after their work. After a trial in which the jury found defendant to be 75% liable, defendant moved to reverse the verdict on the grounds that there was no showing of notice, actual or constructive. The trial court agreed and reversed the verdict; both the Appellate Division and Court of Appeals affirmed, finding plaintiff failed to establish notice (Mercer, 223 A.D.2d 688 aff'd U N.Y.2d 955 ). As explained by the Appellate Division, Second Department, although plaintiff claimed that defendant had actual notice because it created the dangerous condition, plaintiff nonetheless failed to show that defendant's employees affirmatively created the puddle since its supervisor testified that the puddle that size can only be created by the mechanics servicing a vehicle, and the records did not reflect service or maintenance work near the time of the accident, and, as a general rule, the mechanics clean up any oil or grease spills caused by their work (id. at 690).
As for the lack of constructive notice finding, the Appellate Division reasoned that because plaintiff did not notice the unobstructed large puddle of grease, and no other employee saw the puddle even after plaintiff s fall, notice of which cannot be attributed to defendant where they would have had sufficient time to remedy it prior to plaintiffs 7:00 am shift. And as for plaintiffs argument that defendant had constructive notice because the oil/grease spill was a recurring occurrence, the Appellate Division stated plaintiff did not show that that particular puddle which caused the fall was from an accumulation of oils that leaked overnight from defendant's vehicles. The Appellate Division added that "it is well settled that a general awareness that a dangerous condition...may be present, is legally insufficient to constitute notice.... (id. at 691 citing Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967 ; Gordon v. American Museum of Natural History, 67 N.Y.2d 836 ).
Plaintiff in the instant case responds that Mercer does not apply; rather, this case is more in line with Morales v Jolee Consolidators, Inc. (173 A.D.2d 315 [1st Dept 1991]) or Stewart v New York City Tr. Auth. (82 A.D.3d 438 [1st Dept 2011]). The plaintiff in Morales also slipped and fell on a large grease spot in a warehouse/garage that housed delivery trucks. Grease spots were common and use of speedy dry was regular. But, on the day of the accident, the floor had not been cleaned in six hours. The Appellate Division, First Department, found that it could be inferred that defendant had actual knowledge of a recurring and dangerous condition (Morales, 173 A.D.2d at 315-316).
In Stewart, the dangerous condition that caused plaintiff s fall and injuries were slippery and dirty subway station stairs caused by pigeon droppings. The plaintiff in Stewart had repeatedly complained about the pigeon droppings to station workers. He and a station cleaner testified that there was pigeon droppings on the station and stairs every day. And each day the station cleaner puts sand over the droppings to remedy the slippery condition. On the day of the accident, the station cleaner was not at work. On that day, the plaintiff saw the droppings on the steps fourteen hours prior to the accident, and again at the time of the accident. The Appellate Division, First Department, found that based on the evidence, the jury could infer that defendant had actual knowledge that the pigeon droppings were regular occurrences there and thus, constructive notice could be imputed to defendant of each reoccurrence of the hazardous condition (Stewart, 82 A.D.3d at 439).
In the instant case, plaintiff did not present any admissible evidence that defendant knew about the presence of this particular puddle before his accident. There was no evidence that DOS employees had created the problem. An affidavit by plaintiffs co-worker, 'a notice witness', hastily penned in ink two days before plaintiff served his opposition to the instant motion is improper and not considered (see Garcia v. Good Home Realty, Inc., 67
A.D.3d 424 [1st Dept 2009]; Perez v. Bronx Park S. Assoc., 285 A.D.2d 402, 404  Iv denied 97 N.Y.2d 610 ). Therefore, plaintiff did not show that defendants had actual notice of the problem. While plaintiff posits that defendant had actual knowledge of the condition because the occurrence of fuel on the garage floor was not unusual and he had lodged complaints about it, no complaint about this specific puddle was found. Further, a general awareness that a dangerous condition may be present, as stated earlier, is legally insufficient to constitute notice (Mercer at 691 citing Piacquadio v. Recine Really Corp., 84 N.Y.2d 967; Gordon v. American Museum of Natural History, 67 N.Y.2d 836).
Turning to the constructive notice argument, like the plaintiff in Mercer, plaintiff here also had not observed the puddle three hours into his afternoon shift and no one else saw the puddle. And since plaintiff surmised that the puddle was caused by transportation of five gallons of diesel fuel to run the power wash, plaintiff did not show that anyone else had used the power washer in his garage. As to his supposition that the diesel fuel puddle could have been caused by a leak in the power washer, he offered no evidence of a leak in the power washer. According to plaintiff, he also had not started using the power washer on his shift and was between five to ten feet away from it when he fell. This testimony was contradicted by Perrotta's inspection of the area immediately after the fall. Perrotta observed the truck, power washer nozzle, and area being wet. This contradiction, however, is inconsequential considering plaintiff himself stated that he had not seen any problems in the area where he had been traversing through moving the collection trucks around and wheeling out carts of garbage from it.
In reviewing the instant case against Morales and Stewart, a few divergent facts stand out. Unlike the remedial measures in Morales, there was no showing that the garage was regularly cleaned where a lapse of six hours was significant. Indeed, plaintiff himself was there to clean and power wash the trucks which would create puddles. And unlike Stewart, where an assigned station cleaner specifically puts sand down on pigeon droppings in the steps and station every day to prevent accidents, there was not one dedicated employee to clean the area in this garage. In fact, because diesel fuel and hoist oil on the floor is a not an uncommon occurrence, as a general rule, the condition is corrected by sanitation workers who are instructed to immediately apply speedy dry on the grease area whenever they see one.
In this regard, Mercer v. City of New York, supra, is more akin to the case at hand. As such, defendants had no notice, actual or constructive, of the puddle that caused plaintiffs slip and fall, and resulting injuries. Accordingly, defendants' motion for summary judgment is granted. The complaint is dismissed.
This constitutes the decision and order of the court.