[*1]
Roberts v Long Is. Jewish Med. Ctr.
2014 NY Slip Op 51573(U) [45 Misc 3d 1214(A)]
Decided on October 29, 2014
Supreme Court, Queens County
McDonald, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 29, 2014
Supreme Court, Queens County


Yvonne Roberts, Plaintiff,

against

Long Island Jewish Medical Center, Defendants.




8574/2012
Robert J. McDonald, J.

The following papers numbered 1 to 15 were read on this motion by defendant, LONG ISLAND JEWISH MEDICAL CENTER, for an order pursuant to CPLR 3212(b) granting summary judgment in favor of defendant and dismissing the plaintiff's complaint:



Papers Numbered

Notice of Motion-Affidavits-Exhibits................1 - 8



Affirmation in Opposition-Affidavits-Exhibits.......9 - 12



Reply Memorandum...................................13 - 15



________________________________________________________________



This is an action for damages for personal injuries sustained by the plaintiff, Yvonne Roberts, on May 26, 2009, when she purportedly slipped and fell on a wet floor while walking in the waiting area of the Ambulatory Care Unit within the premises of Long Island Jewish Medical Center ("LIJ") located at 270-05 [*2]72nd Avenue, New Hyde Park, New York,11040. Plaintiff claims that as a result of her fall she sustained, inter alia, post traumatic head injury, post concussion syndrome with headaches, traumatic right trigeminal nerve neuropathy, loss of memory, and strain/sprain of the cervical spine.



The plaintiff commenced this action by filing a summons and complaint on April 24, 2012. Issue was joined by LIJ by service of a verified answer on or about June 28, 2012. Plaintiff filed a Note of Issue on July 5, 2013. This matter is presently on the calendar of the Trial Scheduling Part for November 13, 2013.



In her bill of particulars, the plaintiff alleges that the accident occurred as a result of a wet slippery floor. Plaintiff claims that the defendant was negligent in permitting the water to accumulate on the floor, in failing to mop up the water and allowing the premises to remain in an unsafe and dangerous condition. In addition, plaintiff alleges that the defendant failed to give the plaintiff warning or notice of the unsafe condition despite having actual knowledge of the wet floor. Plaintiff claims that the defendant had actual notice of the wet floor and failed to remedy the situation, failed to warn the plaintiff of the hazard and failed to erect protective barriers around the hazardous condition. Plaintiff alleges that the defendant breached its duty to maintain the area in a safe condition. Plaintiff also claims that the defendant had constructive notice of the hazardous condition as the wet floor was visible, apparent and existed for a sufficient length of time prior to the accident such that the defendant had sufficient time to notice and remedy the dangerous condition. Plaintiff claims that there was an eyewitness who told a Security Officer that he had seen children spill water on the floor and that the spilled water had been on the floor for at least 45 minutes.



The defendant now moves for an order, pursuant to CPLR 3212(b), granting summary judgment on the issue of liability and dismissing the complaint. The defendant contends that it is not liable for the accident because LIJ did not create or have actual notice or constructive notice of a dangerous or defective condition. Defendant contends that the plaintiff has not come forward with evidence that the alleged puddle on the floor was visible and apparent for an appreciable length of time such that LIJ's employees could have discovered and remedied the allegedly unsafe condition.



In support of the motion, the defendant submits an [*3]affirmation from counsel, Sylvia E. Lee, Esq., a copy of the pleadings; a copy of plaintiff's verified bill of particulars; and copies of the transcripts of the examinations before trial of the plaintiff, and the defendant LIJ by Security Guard James Pittarelli and Nurse Florence Redmond.



The plaintiff, Yvonne Roberts, age 62, testified at an examination before trial on June 28, 2013, that at the time of the accident she was at North Shore LIJ Hospital in New Hyde Park to pick up her husband who was to be discharged. She stated that her husband had asked her to get certain discharge documents in the ambulatory care unit. As she reached the waiting room area of the triage unit she slipped on a puddle of water on the tile floor. She stated that she was looking straight ahead and she did not see the water prior to falling. There were people sitting in the area where she fell. She also testified that she did not see any employees mopping the water and she did not see any orange cones or caution signs on the floor. She fell on her right side and right shoulder and the back of her head hit the floor. She had bruises on her right leg and her nose was bleeding. She stated that there was a large puddle of water on the floor and her clothes were soaking wet. A nurse came over and assisted her into a wheel chair and immediately took her to the emergency room. She stated that while she was in the wheel chair a female hospital housekeeper named "Mrs. Rooms," came over to her and said to her, "I told them to wipe it up but this is not my area so I have nothing to do. You know how long that water stayed there?" After being treated in the emergency room she was discharged the same day.



James Pittarelli, a Security Officer for LIJ was deposed on November 13, 2013. He stated that on the date of the accident he was at his desk when he received a radio call from Sergeant Manheimer. He was told to report to the ambulatory clinic department to investigate Ms. Roberts' accident. Upon arriving at the clinic he observed Ms. Roberts sitting on a bench. She told him that she fell on water. He stated that he didn't see water on the floor. He did recall two 10 year old boys in the ambulatory area when he arrived. He prepared an incident report.



Florence Redmond, the Nurse Manager for the ambulatory care unit testified at an examination before trial on January 14, 2013. She stated that she remembered the incident in which a female fell in her unit. She reviewed an incident report which states that the plaintiff fell on water. Other than the report she did not have an independent recollection of water being on [*4]the floor. She did not personally observe the accident. She also filled out a progress report containing her evaluation of the plaintiff's physical condition. She did not make an investigation of the accident. She did not recall children in the waiting area. She did not recall anybody complaining of spilled water in the area.



Defendant contends that the plaintiff's complaint should be dismissed because LIJ demonstrated that it did not create the dangerous condition nor that it had actual or constructive notice of the condition. Counsel refers to the deposition testimony of Officer Pittarelli and Nurse Redmond who both testified that they did not observe water on the floor where the incident occurred. Further, it is argued the plaintiff testified that she also did not see water on the floor prior to her fall. Therefore, counsel argues that based upon the testimony of the plaintiff and the LIJ personnel, LIJ has met its initial burden of establishing that it did not create the alleged dangerous condition nor that it had actual or constructive notice of it (citing Wolfson v Nevele Hotel Inc., 222 AD2d 881 [3d Dept. 1995]; Matcovsky v Days Hotel, 10 AD3d 557 [1st Dept. 2004]; Scola v Sun Intl North America, 279 AD2d 466 [2d Dept. 2001]). In addition, counsel argues that the plaintiff failed to show that the alleged water condition was visible and apparent for an appreciable length of time for LIJ's employees to discover and remedy it. Counsel states that the hearsay statement of a purported witness who claimed to have observed the puddle of water is insufficient to show notice.



In opposition to the motion for summary judgment, the plaintiff submits the affirmation of counsel, Derek Pahigiannis, Esq. who states that the motion must be denied as plaintiff is able to present proof that the defendant had actual and/or constructive notice of the dangerous condition which existed on the floor of the triage area on May 26, 2009. In support of the opposition, plaintiff submits a copy of the incident report prepared by Officer Pittarelli and an affidavit of the plaintiff dated July 29, 2014.



In her affidavit, the plaintiff states that prior to the incident she was walking into the hospital's triage area to pick up discharge papers for her husband. She was walking at a normal pace and looking straight ahead when she fell in a puddle of water. After the fall she noticed her clothes were covered in water. She was helped up and placed in a wheelchair by a nurse that was on duty. She states that she was then approached by an older African-American female who was wearing a hospital cleaning uniform, identification tag, and had her hair covered. The staff [*5]member introduced herself as Mrs. Rooms and informed the plaintiff that she had seen the water which caused her fall in that area for close to an hour prior to the accident. Plaintiff states that Mrs. Rooms went on to explain that she was a housekeeper in another area of the hospital and that when she had seen the water prior to the fall she informed staff members in the triage area that the water need to be cleaned up. Plaintiff also states that she also overheard staff members tell a man taking down information that the puddle of water had been present for an extended period of time prior to the accident.



The incident report prepared by Officer Pittarelli states:



"At the above time and date, Yvonne Roberts entered the waiting room area and slipped on a wet floor covered with water hitting her right side and head. Staff said two boys were drinking water which spilled onto the entrance floor. Florence Redmond, Nursing Manager at scene and called housekeeping. Clinic staff took Yvonne Roberts to ER for treatment."



Plaintiff's counsel asserts that the incident report raises a question of fact as to whether two boys spilled water on the floor and whether the defendant should have known of the condition and made efforts to clean it up. Further, plaintiff asserts that Officer Pitarelli, who testified that he did not recall seeing water on the floor made a contradictory statement in his incident report which raises a question as to the credibility of his testimony. Further, plaintiff asserts that Nurse Redmond did not testify that there was no water on the floor rather that she did not recall if there was or not. Thus, it is contended that these statements are insufficient to prove defendant had no notice. Counsel states that the hearsay statement of the plaintiff with regard to what she was told by "Mrs Rooms" taken together with the incident report demonstrates that there are triable issues of fact as to whether the defendant had actual or constructive notice of the dangerous condition which caused the plaintiff's fall.



Upon review and consideration of the defendant's motion, the plaintiff's affirmation in opposition and the defendant's reply thereto, this court finds as follows:



"A defendant moving for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition, nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it" (Rallo v Man-Dell Food Stores, Inc., 117 AD3d 705 [2d Dept. 2014]; Petersel v Good Samaritan [*6]Hosp. of Suffern, NY, 99 AD3d 880 [2d Dept. 2012]). "To meet its initial burden on the issue of lack of constructive notice, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Farren v Board of Educ. of City of NY, 119 AD3d 518 [2d Dept. 2014]; Birnbaum v New York Racing Assn., Inc., 57 AD3d 598 [2d Dept. 2008]). Here, the defendant, LIJ, failed to make a prima facie showing that it was entitled to judgment as a matter of law on the ground that it had no notice of the condition which allegedly caused the plaintiff's fall. There was no testimony from either of the defendant's pre-trial witnesses nor any other evidence presented as to when the area in question was last cleaned or inspected.



Plaintiff claims that she fell in a puddle of water and that her clothes were soaked when she got up. The defendant claims that the testimony of Nurse Redmond and Officer Pittarelli demonstrates that there was no water on the floor where the plaintiff slipped. However, Nurse Redmond testified that she had no recollection of whether there was water on the floor or not. Further, although Officer Pittarelli testified that he did not observe water on the floor, his testimony conflicts with the incident report he prepared which states that the plaintiff slipped on a wet floor covered with water. Thus, there is a question raised as to the credibility of Officer Pittarelli's testimony which cannot be determined on a motion for summary judgment. Further, the defendant, relying on the plaintiff's testimony, claims that the plaintiff only offered hearsay testimony that the alleged puddle was visible and apparent for 45 minutes to an hour and that without admissible proof the plaintiff will not be able to establish notice of the wet condition. However, the burden of establishing lack of notice cannot be satisfied merely by pointing out gaps in the plaintiff's case rather than affirmatively demonstrating the merits of its defense (see McPhaul v Mutual of Am. Life Ins. Co., 81 AD3d 609 [2d Dept. 2011]; Cox v. Huntington Quadrangle No. 1 Co., 35 AD3d 523 [2d Dept. 2006]).



This Court finds that the testimony of the defendant's witnesses is not sufficient to satisfy the defendant's threshold burden of demonstrating lack of notice. As stated above, the defendant submitted no evidence whatsoever to establish when the area where the accident occurred was last inspected or cleaned and has not shown prima facie that there was no water on the floor or that the water was not on the floor for such time that the defendant could have discovered the hazardous condition and remedied it. Defendant also failed to submit any evidence that it had never received any prior complaints about the alleged water [*7]condition (see Altinel v John's Farms, 113 AD3d 709 [2d Dept. 2014]; Osbourne v 80-90 Maiden Lane Del, LLC, 112 AD3d 898 [2d Dept. 2013]; Johnson v Culinary Inst. of Am., 95 AD3d 1077 [2d Dept, 2012]).



As defendant failed to establish its entitlement to judgment as a matter of law, it is not necessary to consider the sufficiency of the opposition papers submitted by the plaintiff (see Dixon v Superior Discounts & Custom Muffler, 118 AD3d 1487 [2d Dept. 2014]; Maloney v. Farris, 117 AD3d 916 [2d Dept. 2014]; Giraldo v Twins Ambulette Serv., Inc., 96 AD3d 903[2d Dept. 2012]; King v 230 Park Owners Corp., 95 AD3d 1079[2d Dept. 2012]; Hill v Fence Man, Inc., 78 AD3d 1002 [2d Dept. 2010]).



Accordingly, for all of the above stated reasons, it is hereby,



ORDERED, that the defendant's motion for summary judgment dismissing the plaintiff's complaint is denied.



This matter remains on the calendar of the Trial Scheduling Part for November 13, 2014.



Dated: October 29, 2014

Long Island City, NY



______________________________

ROBERT J. MCDONALD

J.S.C.