STATE OF NEW YORK
SUPREME COURT : COUNTY OF CHAUTAUQUA
-vs- Index #H-08935
QUALITY MARKETS, INC.; AND
THE PENN TRAFFIC CO.,
Brian Chapin York, Esq.
KENNEY, KANALEY, SHELTON,
NOTARO, LIPTAK & LAING, LLP
(Patrick S. Kenney, Esq. of
Counsel) for Defendants
DECISION and ORDER
This motion by defendant for summary judgment on plaintiff's action for her slip and fall in defendant's store is grounded on the absence of actual or constructive notice.
Plaintiff's proof shows that as she entered the store just before closing time, she saw employees mopping the front area of the store floor; that she proceeded down a dry aisle "looking for cookies on the shelves", and as she was "rounding the end of the shelf, she slipped and fell, landing on a very wet floor." She says she found herself "sitting on a very wet floor and it looked like the whole back area of the store floor was very wet, as if the employees were soaking it before mopping."
It was near closing time; employees were involved in mopping the front of the store. A trier of fact could reasonably infer these same employees either mopped or "soaked" the back of the store preparing to mop it dry; or, if they did not create the condition, they could have, or should have seen the wet floor (provided plaintiff can show that the mopping crew had to pass through the back area of the store to get to the front).
Plaintiff claims defendant created the condition or at least knew about it because its mopping crews were mopping the front of the store; that it may be assumed that if they did not create the condition plaintiff describes, they would have had to have seen it as they walked to their mopping assignment in front of the store.
To make that assumption, the Court would need to know the
layout of the store, where and when the mopping crew entered the shopping area to perform their mopping, whether they had been anywhere near the area where plaintiff fell.
Defendant has not overcome the strong inference that it's
employees created the condition or at least should have seen it as they undertook their mopping assignment that evening, but, the Court does not yet decide whether she has established a prima facie case of negligence.
It is true that plaintiff's attorney hoisted himself on his own petard in stating "that she did not notice the area where she fell was wet before she fell . . . supports the element that the dangerous condition was not obvious". If it was not obvious to plaintiff, how could it have been obvious to the employees?
Of course, if defendant's employees created the condition, plaintiff has met the test.
On a motion for summary judgment, the Court must consider
the evidence in the light most favorable to the one moved
against. The facts presented by plaintiff create an inference of actual, if not constructive notice, sufficient to at least
justify further discovery.
Plaintiff seeks to depose employees of defendants
to reinforce her "circumstantial evidence." If the opposing
party needs further opportunity to secure affidavits or conduct disclosure or otherwise summon forth evidentiary aid in opposing the motion, the Court can make any order which seems appropriate, as long as that party attests in his affidavits that such opposing facts may exist. DAVID D. SIEGEL, NEW YORK PRACTICE, section 283; CPLR 3212(f); KAGAN V. US LIFE INS CO., 21 AD2d 846, 250 NYS2d 889 (4th Dept).
Over four years have elapsed since plaintiff's September 25, 1990 slip and fall. The action has been pending since August, 1991. The employees can hardly be expected to recall facts surrounding an incident that took place over 4 years ago.
Plaintiff has had ample time to conduct depositions. The
Court is not satisfied with the explanation of her counsel to
justify the delay.
On one hand Counsel says "The pre-trial litigation
activities were suspended back in February of 1993 to allow
plaintiff time to reach maximum medical recovery and be able to evaluate this claim toward possible settlement" and on the other hand this took longer than anticipated because "plaintiff could not afford continued medical treatment."
Even though during argument on the motion the Court chided counsel for this excuse, he again recited the same argument in his brief. He says: "When plaintiff attempted to reschedule defendant's deposition in January of 1993, defendant responded with a request for a settlement demand. . .". On checking with the client plaintiff's counsel learned that medical documentation could not be obtained regarding plaintiff's significant symptoms because she had not
continued treatment due to financial hardship. "Plaintiff was
advised to return to her doctor as soon as possible so that the needed documentation could be obtained."
Plaintiff's counsel couldn't obtain a medical report from
plaintiff's doctor as of January 1993 or for two years
thereafter? Did he attempt to obtain a medical report? He makes much of what defendant's counsel didn't do: what did he do between January 1993 and January 1995?
If plaintiff's counsel genuinely believes the explanation he gives in paragraphs 11 and 12 of his affidavit satisfactorily justifies the delay, he is not only sadly mistaken, he misunderstands his obligation to his client. See NEW YORK RULES OF COURT, Section 1022.8.
If he doesn't believe his explanation, he insults the
intelligence of the Court and misunderstands his obligation to
truth. Either way, he provides fodder for those who see a need for close monitoring of negligence cases to insure they are processed expeditiously by attorneys and the Courts. (For
example, see the new matrimonial rules).
To say that plaintiff's financial or physical condition had anything to do with the delay in deposing defendant, or would justify suspending pretrial activity, is nonsense and frivolous.
To attempt to blame it on defendant's counsel is equally
frivolous; both are lame excuses for delay. The CPLR provides
the tools to compel disclosure.
Situations like this present difficult options for the
Courts. Because the Court is reluctant to deprive plaintiff of
her day in court for actions or nonactions of her counsel the
Court adjourns this motion to April 24, 1995 at 11:30 A.M. to permit plaintiff to either (1) conduct depositions of defendant's employees, provided, plaintiff's counsel (and not plaintiff) must reimburse either the defendant or the deposed employees for wages of those employees, and $250 at least 10 days before the deposition toward the counsel fees of defendant for attendance at the deposition(s), all of which must be conducted in one day, or, (2) submitting interrogatories. If plaintiff's counsel elects to
resort to interrogatories, he shall advance $100 for counsel fees along with the interrogatories.
As for the Notice to Admit, defendant's counsel is correct. Plaintiff's counsel did not follow the procedures set forth in Section 3123(a). Plaintiff will have to live with her failure to respond to the notice.
THIS IS THE DECISION and ORDER OF THIS COURT. NO FURTHER
ORDER IS NECESSARY.
Dated: February 28, 1995
Mayville, New York
Justice of Supreme Court
TO: Brian Chapin York, Esq.
Patrick S. Kenney, Esq.
TAKE NOTICE THAT THE ORIGINAL OF THIS
ORDER HAS BEEN DULY FILED IN THE OFFICE
OF THE CHAUTAUQUA COUNTY CLERK ON THE
DAY OF , 1995.
Linda A. Williams, Secretary to
Justice Joseph Gerace