[*1]
Claros v St. John's Univ.
2014 NY Slip Op 51743(U) [45 Misc 3d 1228(A)]
Decided on December 8, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2014
Supreme Court, Queens County


Judith Claros and ESPIRITA CLAROS, Plaintiff,

against

St. John's University and COMPASS GROUP USA, INC., d/b/a CHARTWELLS, Defendants.




9360/2012
Robert J. McDonald, J.

This is an action for damages for personal injuries sustained by plaintiff, Judith Claros, on September 20, 2009, when she allegedly slipped and fell on a pile of flat cardboard [*2]boxes which were on the floor of the Montgoris Dining Hall at St. John's University located at 8000 Utopia Parkway, Queens County, New York. As a result of her fall, the plaintiff allegedly sustained injuries to her back and right knee.



This action was commenced by the filing of a summons and complaint on May 3, 2012. Issue was joined by service of defendant Chartwells' verified answer with cross-claims dated July 12, 2012. Defendant St. John's University joined issue by service of a verified answer with cross-claims dated September 26, 2012. The plaintiff filed a Note of Issue on November 6, 2013. This matter is presently on the calendar of the Trial Scheduling Part for December 10, 2014.



Defendant Chartwells, the entity that was responsible for food and dining services at the Montgoris Cafeteria, now moves for an order pursuant to CPLR 3212(b), granting summary judgment on the issue of liability and dismissing the complaint. Defendant contends that it is not liable because the plaintiff testified that she saw the cardboard on the floor prior to exiting an elevator, that the cardboard was flat and dry and obvious, and the plaintiff made no effort to walk around the box or to move the box prior to stepping on it. Defendant contends that it is entitled to summary judgment because the flattened cardboard box was readily observable and because, according to the movant, the Second Department has held that a flattened cardboard box does not, per se, constitute a dangerous condition.



Defendant, St. John's University moves separately for summary judgment on the ground that St. John's owed no duty to the plaintiff as it was not responsible to clean or maintain the area of plaintiff's accident at the time of the accident. St. John's alleges that there was a comprehensive management agreement in effect at the time of the accident, pursuant to which defendant Chartwells was responsible for cleaning the floor where plaintiff had her accident. In addition, St. John's claims that it did not create the allegedly hazardous condition and had no actual or constructive notice of a defective or hazardous condition.



In support of the motion, defendant, Chartwells, submits an affirmation from counsel, Marc A. Sherman, Esq., a copy of the pleadings; plaintiff's verified bill of particulars and supplemental bill of particulars; the transcript of the examination before trial of the plaintiff, Judith Claros; and the affidavit of Maurice Jones, the former Manager of Food Services for Chartwells.



Defendant, St. Johns, submits an affirmation from its counsel, Kristine A. Renna, Esq; a copy of the pleadings, a copy of the deposition transcripts of plaintiff and the deposition testimony of Scot Lemperle on behalf of St. John's, and a copy of the contract entered into between St. John's and Chartwells.



In her verified bill of particulars the plaintiff states that the defendants were negligent in the ownership, operation, management, maintenance, supervision, repair and control of the floors in the premises, in that the floors were kept in a slippery, dangerous and hazardous condition. Plaintiff also asserts that the defendants permitted and allowed an accumulation of water, cardboard boxes, garbage, juice boxes and other foreign substances to be and remain on the floor thereby causing a hazard, trap and nuisance. Plaintiff claims defendants were negligent in failing to warn of the hazard, failing to barricade off the area, and in failing to secure the cardboard. Counsel asserts that the defendants caused the dangerous condition, and had actual and constructive notice of the dangerous condition in that they permitted the dangerous condition to exist for an unreasonable length of time when the defendants, through the exercise of reasonable care, could have discovered and remedied the dangerous condition.



The plaintiff, Judith Claros, age 55, testified at her examination before trial, taken on October 25, 2013, and January 27, 2014, that on the date of the accident, September 20, 2009, she was employed as a porter/cleaning person by Total Maintenance Solutions at St. Johns University. Her job duties included cleaning the bathrooms, sweeping, picking up garbage, cleaning glass, mopping the floors and setting up for special events. She was assigned to the Montgoris Dining Hall, a two story building with a basement. The cafeteria is on the first floor. She testified that on the day of her accident, she entered the building on the first floor and took the elevator to the second floor to get her rolling cart and cleaning materials. She then took the elevator down to the basement to clean the bathrooms. After completing the bathrooms she took the elevator to the first floor where the elevator opens into the cafeteria's kitchen area. When she got to the first floor, the elevator doors opened and in her own words she stated, "in front of the elevator, there were cardboards, there was water, juice. It was garbage." The items had not been there earlier that day when she took the elevator down to the basement. When the elevator doors opened she observed the debris on the floor. There was a flattened cardboard box to her left and a path covered in liquid. She stated that there was space, less than one foot, separating the wet area and the [*3]cardboard box. Before exiting the elevators she did not try to move the objects out of the way, she did not try to pick up any of the objects or clear a path. She took four or five steps and slipped on the cardboard with her left foot. She stated that the cardboard was big, open, and flat, about two feet square and that there were at least two boxes piled on top of each other. The debris was four or five steps from the elevator door. She stated that she may have stepped on the liquid and then on the cardboard because she had to pass through. She was not sure if she stepped on the water and juice prior to stepping on the cardboard. She stated that there was no other way out and no other exit.



After she fell she noticed that the floor was wet from water and juice. She stated that she tried to avoid stepping on the cardboard but she could not avoid it. She did not know why she slipped on the cardboard. She did not know how long the debris was on the floor in front of the elevator before she arrived at that location and she did not how the debris got there. However, she stated that she saw a man organizing the boxes and breaking them down so they were flat. She fell backwards onto her back and hit her head on the floor. Her co-worker Jaime helped her up. She got up and went to the main entrance and called a security guard to fill out an accident report. Security called an ambulance who took her from the premises to Jamaica Hospital. Thereafter, she filed a claim for worker's compensation benefits. She did not return to her job for ten months.



Chartwells also submits the affidavit of one Maurice Jones, the former Manager of Food Services for Compass Group, USA, Inc. at St. John's University Montgoris Dining Facility. He states that Metro Cleaning, plaintiff's employer, had the contract to clean various parts of the building other than the servery, the kitchen and the loading dock. He states that the area immediately outside the freight elevator where the accident occurred was the responsibility of Chartwells to clean. He states that the floor where the accident occurred is cleaned by Chartwells employees 4 - 5 times per day and as necessary if any wetness or debris is observed. He states that all employees of Chartwells were trained to notify him of dangerous conditions within the areas that Chartwells was responsible for including the freight elevator lobby area. He states that he received no complaints of any dangerous conditions in the area around the freight elevator on the day in question. He did not receive any notice that Ms. Claros had an accident on the day in question and because no accident report was created, no investigation was performed. He states that broken down cardboard boxed from food received by the kitchen is transported to a location by the loading dock approximately 150 feet away from the location of the accident. He [*4]states that the condition the plaintiff described, wetness and cardboard on the floor outside the freight area was not a condition which he believes was created by Chartwells employees or Chartwells operations.



St. John's submits the deposition testimony of Scott Lemperle who testified on February 12, 2014. Mr. Lemperle testified that he has been employed as the Director of Auxiliary Services Operations for over three years. In his position he has oversight of the day to day operations of the dining program, including Montgoris Dining Hall, the bookstore, cell towers, laundry contracts, cleaning and other auxiliary services. With respect to the dining program, he stated that he is the direct liason with Chartwells Compass Group, the company that runs and provides the dining services at the Queens Campus including food delivery, food preparation and cleaning of the dining areas. He stated that Montgoris consists of a stand alone two story building, including basement, main dining hall and second floor. He stated that the main dining floor consists of a dining room, serving area, and kitchen behind the serving area where the food is prepared. The second floor is primarily a balcony that overlooks the dining area. The basement consists of mainly storage areas and a loading dock, bathrooms and locker rooms. He stated that here are two elevators in the building one in the front of the building for public access that goes to the second floor and one in the kitchen for staff use that is used for service fro the kitchen to the basement. The second elevator exits into the kitchen food prep area. He stated that Chartwells is responsible for cleaning the kitchen floor area in Montgoris based upon the dining services management agreement entered into between St John's University and Chartwells. The contract was signed by Thomas Nedell who was the Vice President for Business Affairs and Treasurer of St Johns. He stated that he did not have personal knowledge of plaintiff's accident in 2009 prior to his tenure at the University. He also stated that Total Cleaning Solutions assists with cleaning the floors in the dining room. He stated that Chartwells is responsible for cleaning the area where the plaintiff is alleged to have fallen. He stated that St. Johns has no cleaning obligations at the University as they are all contracted out.



In his affirmation in support of the motion for summary judgment, Chartwells counsel contends that the plaintiff testified unambiguously that she intentionally stepped onto a piece of flat, dry cardboard and slipped on it causing her to fall on her back. Counsel asserts that case law holds that flattened cardboard on the floor, which is readily observable and is in fact observed, is not a dangerous condition which provides [*5]a basis of liability against a dedfendant charged with maintaing the proerty (citing Sosa v RS 2001, Inc., 106 AD3d 720 [2d Dept. 2013][the piece of cardboard was not an inherently dangerous condition and was readily observable by the reasonable use of the plaintiff's senses]; Schoen v King Kullen Grocery Co., 296 AD2d 486 [2d Dept. 2002][the flat cardboard on the floor did not constitute an inherently dangerous condition and was readily observable by the reasonable use of the injured plaintiff's senses]; Boehme v Edgar Fabrics, 248 AD2d 344 [2d Dept. 1998][the injured plaintiff testified that he had actually seen the stack of cardboard cartons on which he stepped and that he purposely stepped on them]). Counsel argues that here, plaintiff slipped on a flat, dry, piece of cardboard which was readily observable, that she saw the cardboard and consciously decided to step onto it. Counsel asserst that because she intentionally entered on the condition she cannot recover for its being there (citing Costello v. Grand Cent. Plaza Inc., 268 AD2d 722 [2d Dept. 2000]). Counsel claims that the plaintiff could have taken another path and avoided walking over the cardboard. Instead she chose to deliberately walk over the cardboard.



Defendant Chartwells contends it is entitled to summary judgment as the plaintiff could not identify the cause of her fall. Counsel cites to the plaintiff's deposition testimony in which she stated that she had no idea what caused her to fall. She stated that she fell while on the cardboard but she could not identify a defect or reason why she tripped on the cardboard (see Goldfischer v Great Atl. & Pac. Tea Co., Inc., 63 AD3d 575 [1st Dept. 2009][he failure to identify the condition that caused plaintiff's fall is fatal to plaintiff's claim]; Pluhar v Town of Southampton, 29 AD3d 975 [2d Dept. 2006]). Lastly, it is argued that the plaintiff did not establish that it was an employee of Chartwells that left the cardboard at the location.



In its motion for summary judgment, St. John's University asserts that St. John's bears no liability as it had a contract in effect with Chartwells under which Chartwells was responsible for cleaning the floors of the kitchen and food preparations area (see Resident Services Management Agreement at pgs. 14 - 16) Counsel asserts that Mr. Lemperle testified that pursuant to the contract and his knowledge of current practices, Chartwells is responsible for cleaning the floor and removing garbage where plaintiff claims to have slipped just outside the service elevator in the Montgoris kitchen. St. John's moves for summary judgment stating that it did not owe a duty to the plaintiff as it was not responsible to clean or maintain the area of plaintiff's accident and it is free from any negligence that may have caused the plaintiff's alleged injuries. Counsel also [*6]asserts that St. John's had no notice of the allegedly defective condition because according to the plaintiff's testimony, the condition could not have been there more than 35 minutes prior to the accident and there is no testimony in the record that would tend to show that anyone from St John's created the allegedly dangerous condition.



In opposition, plaintiff's counsel, Lauren Cristofano, Esq. submits an affirmation stating that there are triable issues of fact raised by the evidence. Plaintiff argues that the cases cited by the defendant with respect to flattened cardboard on the floor are inapposite because in this case the plaintiff testified that there was not only cardboard on the floor but also juice and water. Further, it is argued that as the plaintiff exited the elevator doors she had no clear path to take and had to step on juice, water, or cardboard. Counsel asserts that even if the condition was obvious, plaintiff did not have the option of taking a clear path as there was no clear path for plaintiff to take. Plaintiff argues that the cardboard and liquids combined to cause a hazardous condition. In addition, plaintiff argues that the defendants had constructive notice of the dangerous condition and failed to clean it up.



Plaintiff also asserts that the motion is premature as the plaintiff has not yet had an opportunity to depose a witness for Chartwells. Counsel asserts that pursuant to CPLR 3212 further discovery is permitted when facts necessary to oppose the motion exist but cannot be stated by the motions opponent. Counsel submits that to date a deposition of the Chartwells witness has not been scheduled. Counsel asserts it is entitled to depose Mr. Jones who submitted an affidavit on behalf of the defendant. Plaintiff also asserts in its cross-motion that the witness produced by St. John's, Mr. Lemperle, commenced his position overseeing the dining program at St. John's in 2011, two years after the accident, had no knowledge of the accident, nor of the proceedings at the time of the accident. Counsel requests that St. John's produce a further witness for deposition. Counsel asserts that plaintiff cannot oppose the motion without a deposition of a witness with knowledge of the practices and procedures or circumstances surrounding happening of the plaintiff's accident and it is entitled to discover facts which are exclusively in defendants knowledge in order to properly oppose the motions. (Citing Santoro v Diaz, 86 ASD2d 926 {2d Dept. 1982]).



The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the [*7]burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).



Here, the defendant, Chartwells, 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 statement from the defendant's pre-trial witness nor any other evidence presented as to when the area in question was last cleaned or inspected. Although Mr. Jones submitted an affidavit to the effect that the floor in the area is cleaned by Chartwells 4- 5 times per day and as necessary if wetness or debris is observed, there was no testimony as to specifically when the area in front of the elevator was last inspected. Here the defendant only provided testimony as to general cleaning and inspection procedures without indicating when the particular area where the plaintiff fell was last inspected, cleaned, or maintained (see Lamour v Decimus, 118 AD3d 851 [2d Dept. 2014]; Klerman v Fine Fare Supermarket, 96 AD3d 907 [2d Dept. 2013] Levine v Amverserve Assn., Inc., 92 AD3d 728 [2d Dept. 2013] ; Santos v 786 Flatbush Food Corp., 89 AD3d 828 [2d Dept. 2011]; Birnbaum v New York Racing Assn., Inc., 57 AD3d 598 [2d Dept. 2008]; Kazimir v Cornyn, 30 AD3d 380 [2d Dept 2006]).



Plaintiff testified that she fell in an area of the kitchen immediately in front of the elevator doors. She claims the when the doors opened she was immediately confronted with at least two cardboard boxes stacked on top of each other right in front of the doors, the size of which was the entire width of the elevator door opening. She stated that abutting the boxes there was a bag of garbage, and a spill of red juice and water. She claims that she could not avoid walking on the boxes, juice or water and that there was insufficient space for her to exit the elevator without stepping on the boxes, the juice or water. She elected to step on the boxes and upon doing so slipped and fell. Defendant relying on several Appellate Division cases, as cited above, asserts that flattened cardboard boxes lying on the floor are not considered to be an inherently dangerous condition (see e.g., Sosa v RS 2001, 106 AD3d 720 [2d Dept. 2013]). Defendant asserts that the cardboard was open and obvious not an inherently dangerous condition and readily observable by the use of the plaintiff's senses.



However, this Court finds that the circumstances herein are distinguishable from the cited cases because in this case the plaintiff was immediately confronted with the boxes on the floor [*8]as soon as the elevator doors opened and even though she saw them on the floor she had no choice when getting off the elevator but to either step on the boxes, the water or the juice. Thus, based upon her testimony, the plaintiff had to step boxes when exited the elevator as she had no time to clear the area and no opportunity to avoid the debris on the floor. In addition, this court finds that the defendant's evidence was insufficient to establish that the condition of the floor, as well as the collapsed boxes immediately in front of the elevator was not inherently dangerous under the circumstances of this case and did not present an unreasonable or foreseeable risk of harm (see Maneri v Patchogue-Medford Union Free Sch. Dist., 2014 NY Slip Op 07336 [2d Dept. 2014][whether a hazard is open and obvious is fact specific cannot be divorced from the surrounding circumstances as the condition may be rendered a trap or hazard where plaintiff is distracted]; Doughim v M & US Prop., Inc., 120 AD3d 466 [2d Dept. 2014]; Russo v Home Goods, Inc., 119 AD3d 924 [2d Dept. 2014]). Thus, given the totality of the circumstances, and reviewing the evidence in the light most favorable to the non-moving party, the defendant has failed to eliminate triable issues of fact as to whether there was liquid and juice, and stacked boxes right in front of the elevator door opening, whether the liquid and adjacent boxes created an unsafe condition for the plaintiff as she exited the elevator, and whether the plaintiff could have avoided the hazardous condition.



This Court finds that the testimony of the CHartwells' witness is not sufficient to satisfy this defendants' 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 the water and debris were not on the floor for such time that the defendant could have discovered the hazardous condition and remedied it.



As defendant Chartwells 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]).



This Court finds however, that St. John's motion for summary judgment dismissing the plaintiffs complaint against it is granted. Here, St. John's presented evidence of a Dining Services [*9]Management Agreement with Chartwells which established that Chartwells was under a comprehensive contract under which Chartwells was responsible for cleaning the floors in the area where the accident occurred and as such that its duties displaced those of the property owner to maintain the kitchen area in a safe condition as far as cleaning the floors. The contract at page 15, paragraph D, requires Chartwells to keep the floors in the kitchen clean throughout the day. The contract also delineates the University responsibilities with respect to cleaning at the dining hall but does not include cleaning the kitchen floors. In addition, St. John's pre-trial witness testified that Chartwells was responsible for cleaning the area where the plaintiff fell and was also responsible for removing the garbage from the kitchen at Montgoris Hall. Therefore, this Court finds that the defendant St. John's University demonstrated, prima facie, that it did not have a duty for cleaning and maintenance of the floor where the plaintiff fell (see Espinal v. Melville Snow Contrs., 98 NY2d 136 [2002]).



In opposition, the plaintiff failed to raise a triable issue of fact with regard to the duties of the respective parties under the contract. In fact, plaintiff asserts in opposition that Chartwells was under agreement with St. Johns to maintain and clean the cafeteria.



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



ORDERED, that the motion for summary judgment dismissing the plaintiff's complaint against defendant COMPASS GROUP USA, INC. d/b/a CHARTWELLS is denied, and it is further,



ORDERED, that the motion by ST. JOHN'S UNIVERSITY for an order granting summary judgment dismissing t he plaintiff's complaint and all cross-claims against ST. JOHN'S is granted, and it is further,



ORDERED, that plaintiff's cross-motion for an order directing Chartwells to produce a witness for deposition is granted to the extent that he parties shall arrange for said deposition within 30 days of the date hereof if said deposition has not yet occurred.



Dated: December 8, 2014

Long Island City, NY



_____________________



ROBERT J. MCDONALD



J.S.C.