August 26, 2013
Peter BOCK, Plaintiff
LOUMARITA REALTY CORPORATION a/k/a Lou Maria Realty Corp., and Pasticceria Bruno of Greenwich Village, Inc., Defendants. No. 103221/11.
This decision has been referenced in a table in the New York Supplement.
Fillmore K. Peltz, Esq. by Fillmore K. Peltz, Esq., Massapequa, for Plaintiff.
Morris Duffy Alonso & Faley by Jeoungson Kim, Esq., of Counsel, New York, for Defendants.
MANUEL J. MENDEZ, J.
Upon a reading of the foregoing cited papers, it is ordered that this motion for summary judgment is granted, the complaint is dismissed.
In this action to recover for personal injuries as a result of plaintiff's slip and fall on a wet sidewalk in front of defendants' premises, defendants move for summary judgment alleging that the sidewalk is not inherently dangerous, that they did not create a dangerous condition or had actual or constructive notice of a dangerous or defective condition.
Defendants' moving papers contain a copy of plaintiff's deposition, copies of the depositions of Gordana Peric and Viktor Dembitskyi— employees of defendant Pasticceria Bruno— a copy of the deposition of Marisa Bonet— on behalf of defendants building owners— copies of photographs where according to plaintiff the accident occurred, and an affidavit from its expert engineer Anthony Mellusi.
Plaintiff testified that on October 24, 2009 he entered a bakery at the premises operated by defendant Pasticceria Bruno of Greenwich Village (hereinafter " Pasticceria Bruno" ) located at 506 Laguardia Place in Greenwich Village, which building is owned by defendants LouMarita Realty Corporation a/k/a Lou Maria Realty Corp. (hereinafter " Lou Maria" ), to purchase a loaf of bread. It was approximately 8 P.M. and it was raining heavily. When plaintiff exited the premises, after he had walked a few feet, he suddenly slipped and fell to his left— striking his head with a metal railing, placed there for a sidewalk café — sustaining injuries. Plaintiff stated he " stepped onto an extremely slippery piece of rock or concrete off a very much coarser piece of pavement or surface and [his] feet came out from underneath [him] so fast he had no chance to react.." " The surface was very shiny and firm." [see Transcript Pg. 20 Line 16-22 and Pg. 22 Line 21-23].
Gordana Peric, Pasticceria's manager at the time and Viktor Dembitskyi, an employee, heard a loud noise outside. They proceeded outside to see what was happening and noticed plaintiff on the floor, in an awkward position, with the items he was carrying in approximately six bags thrown on the sidewalk. They helped plaintiff get up from the floor, collected his belongings and brought him into the bakery. They both stated that it was raining at the time of the accident and that there were no defects on the sidewalk where plaintiff fell.
Marisa Bonet a witness produced by Lou Maria, the property owner and manager stated that a portion of the sidewalk is made of granite, that it had not been repaired prior to plaintiff's fall or since. Photographs of the sidewalk, taken by plaintiff two or three days post accident, show no visible defect in the area plaintiff fell. [see photographs Exhibit D]. They show that the sidewalk is composed of masonry, followed by a cement strand or patch which unites the masonry with granite. Plaintiff fell on the granite portion of the sidewalk.
Defendants' expert engineer Anthony Mellusi inspected the area, found the surface where the accident occurred to be natural in finish and texture, found the cement strand or patch to be without defect with no evidence of a tripping hazard and noted no tripping hazards or defects in an area surrounding a 6 foot radius of the accident location. He tested the slip resistance of the walkway surfaces at various locations with results ranging from .58-.60 which is safe and in line with the accepted industry standards.
Defendants now move for summary judgment dismissing the complaint on the grounds the sidewalk is not inherently dangerous, that it has not been established that they created a dangerous condition or had any actual or constructive notice of a dangerous condition. Defendants allege that plaintiff's claims are without merit and present no triable issue of fact for a jury to decide.
Plaintiff opposes the motion and argues that defendants have failed to make out a prima facie case entitling them to judgment as a matter of law. Plaintiff also argues that there exists an issue of fact as to whether defendants neglected to maintain their property in a reasonably safe condition or exercised reasonable care to avoid creating a hazardous condition. Plaintiff claims that the concrete strand or patch in and of itself is a sidewalk defect precluding summary judgment.
In opposition to the motion plaintiff submits the affidavit of its expert engineer, Herbert W. Braunstein, P.E., P.A., who on October 18 and 19, 2011-two years after the accident— performed an inspection of the sidewalk and a slip resistance test. He found the non-porous granite surface to be .37 when the surface is wet from rain, the maximum allowable co-efficient being .50. He also found the concrete " patch" to be a trip hazard. [See Opposing papers Exhibit 25].
In order to prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. ( Klein v. City of New York, 89 N.Y.2d 833; Ayotte v. Gervasio, 81 N.Y.2d 1062, Alvarez v. Prospect Hospital, 68 N.Y.2d 320). Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut that prima facie showing, by producing contrary evidence, in admissible form, sufficient to require a trial of material factual issues ( Kaufman v. Silver, 90 N.Y.2d 204; Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525; Iselin & Co. v. Mann Judd Landau, 71 N.Y.2d 420). In determining the motion, the court must construe the evidence in the light most favorable to the non-moving party ( SSBS Realty Corp. V. Public Service Mut. Ins. Co., 253 A.D.2d 583; Martin v. Briggs, 235 192).
It is axiomatic that summary judgment is a drastic remedy and should not be granted where triable issues of fact are raised and cannot be resolved on conflicting affidavits ( Millerton Agway Cooperative v. Briarcliff Farms, Inc., 17 N.Y.2d 57, 268 N.Y.S.2d 18, 215 N.E.2d 341 ; Sillman v. 20th Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387 ; Epstein v. Scally, 99 A.D.2d 713, 472 N.Y.S.2d 318. Summary Judgment is " issue finding" not " issue determination" (Sillman, supra; Epstein, supra). It is improper for the motion court to resolve material issues of fact. These should be left to the trial court to resolve ( Brunetti, v. Musallam, 11 A.D.3d 280, 783 N.Y.S.2d 347[1st Dept.2004] ).
The fact that a sidewalk is slippery when wet with rain gives no cause of action to a person who has suffered an accident on the sidewalk, absent evidence that the sidewalk is in any way defective ( Phillips v. 630 McKinley Square Corporation, 285 A.D. 18, 135 N .Y.S.2d 272 [1st. Dept.1954] ). The mere fact that a sidewalk is wet from the rain is not a dangerous condition as would impose liability upon a defendant in a slip and fall action ( Richardson v.. Campanelli, 297 A.D.2d 794, 748 N.Y.S.2d 31 [2nd. Dept.2002] ).
To impose liability upon a defendant in a slip and fall action, there must be evidence tending to show the existence of a dangerous or defective condition and that the defendants either created the condition or had actual or constructive knowledge of it ( Richardson v. Campanelli, 297 A.D. 794, Supra). As such summary judgment has been granted to a defendant dismissing the Slip and Fall claim where the accident occurred in a terrace exposed to the elements which was wet due to an earlier rain storm ( Gringberg v. Luna Park Housing Corporation, 69 A.D.3d 793, 891 N.Y.S.2d 910 [2nd. Dept.2010] ); where the accident occurred on a staircase leading to the front entrance of a building and at the time of the accident the staircase was wet from rain ( Morgan v. City of New York, 59 A.D.3d 412, 872 N.Y.S.2d 543[ 2nd. Dept.2009] ); where a painted sidewalk was slippery when wet from rain but prior to the rain the paint had thoroughly dried and was somewhat worn but there was no evidence the paint was in any way defective, or contained improper materials or had been improperly applied ( Phillips v. Mckinley Square Corporation, 285 A.D. 18, Supra); where plaintiff slipped on driveway apron wet from rain and there was no evidence that the apron was improperly constructed or designed ( Richardson v. Campanelli, 297 A.D.2d 794, Supra).
Plaintiff has failed to show the existence of a defective or dangerous condition on the sidewalk and that defendants either created or had knowledge of the condition. In sum Plaintiff's expert affidavit merely states in conclusory fashion that the granite portion of the sidewalk is inherently dangerous because it is slippery and slick when wet. His opinion is essentially that plaintiff fell because the sidewalk was too slippery. Plaintiff offers no evidence of the reason for his fall other than the granite portion of the sidewalk being slippery due to rain. Plaintiff claims that the granite portion was smooth due to wear and tear and this condition caused it to be excessively slippery and slick when wet.
Neither the circumstance that the granite portion of the sidewalk might be inherently slippery by reason of its smoothness or that it might become more slippery when wet, is indicative of negligence on the part of the defendants ( Wasserstrom v. New York City Transit Authority, 267 A.D.2d 36, 699 N.Y.S.2d 378 [1st. Dept.1999]; Murphy v. A.J. Conner, 84 N.Y.2d 969, 646 N.E.2d 796, 622 N.Y.S.2d 494  ). Nor is the fact that the portion of the sidewalk where plaintiff fell is more slippery than other portions of the sidewalk indicative of negligence or sufficient to preclude the granting of summary judgment ( Wessels v. Service Merchandise Inc., 187 A.D.2d 837, 589 N.Y.S.2d 971 [3rd. Dept.1992]; Boatwright v. New York City Transit Authority, 304 A.D.2d 421, 758 N.Y.S.2d 307 [1st. Dept.2003] ).
Plaintiff slipped and fell on the sidewalk in front of defendants' premises while it was raining heavily. The accident did not occur as a result of a dangerous or defective condition on the sidewalk but due to the slippery condition of the sidewalk when wet with rain. In essence plaintiff's claim is that he fell because the sidewalk was slippery by reason of its smoothness, under these circumstances liability cannot be imposed on the defendants, nor is an issue of fact raised precluding the granting of summary judgment.
Accordingly, it is ORDERED that defendants' motion for summary judgment is granted, and it is further
ORDERED, that defendants are granted summary judgment dismissing the complaint and the complaint as against all defendants is dismissed, and it is further
ORDERED, that the clerk is directed to enter judgment accordingly.