Opinion
100513/2009.
Decided September 16, 2011.
ANDREW C LAUFER, LAW OFFICE OF ANDREW C. LAUFER, PLLC, New York, NY, COUNSEL FOR PLAINTIFF, James G. McHugh.
ANDREW P KEAVENEY, LANDMAN CORSI BALLAINE FORD PC, New York, NY, COUNSEL FOR DEFENDANTS, METRO NORTH COMMUTER RAILROAD and METROPOLITAN TRANSPORTATION.
The Court wishes to thank Douglas K. Chiu, New York University, class of 2008, BA, New York University Robert F. Wagner School of Public Service, class of 2010, MPA, for his contribution to this decision.
A Metro-North Railroad commuter, startled by a rodent at the Grand Central Terminal, brought this personal injury action against defendants Metro-North Commuter Railroad ("Metro-North") and Metropolitan Transportation Authority ("MTA") (collectively, "defendants"). Defendants move, pursuant to CPLR 3212 to dismiss plaintiff's complaint.
Background Facts
Plaintiff alleges that at approximately 7:15 p.m. on January 25, 2008, while walking down the ramp leading to train platforms of track 17 at the Metro-North Grand Central Terminal (the "Grand Central," or alternatively, the "premises"), he fell after he jumped out of the way of a running rodent (the "accident"). On January 13, 2009, plaintiff commenced this action against defendants Metro-North and MTA, for failure to keep the premises free from a dangerous condition of rodent infestation, which ultimately caused plaintiff's injuries. In his Bill of Particulars, plaintiff also asserted violations of New York City Administrative Code §§ 19-121, 19-152, 26-252, 16-118 and City Charter section 2904.
Subsequently, in June of 2010, plaintiff commenced a second action entitled James G. McHugh v GM Pest Control, LLC, GM Pest Control of New York LLC and Tempco Inc., Index No. 108618/2010, which was footnote 2 contd.
Consolidated with the first action under the instant Index No. 100513/2009, pursuant to this court's order dated March 1, 2011.
Defendants answered, asserting various affirmative defenses, and now move, pursuant to CPLR 3212 to dismiss plaintiff's complaint.
In moving for summary judgment, defendants argue that they took every reasonable effort to maintain the premises in clean and safe condition, they had no actual or constructive notice of the presence of rodent infestation in the specific area prior to the accident and plaintiff's injuries were not foreseeable.
According to the deposition testimony of an MTA police officer Joseph Tursellino ("Tursellino") who responded to the scene of the alleged accident and interviewed plaintiff, he did not observe any debris or waste in or around the area where plaintiff fell (exhibit E, pp. 8-9). He also testified that on the day of the accident, after starting his shift at 7:00 p.m., he performed his routine inspection of the subject area and did not observe any refuse or waste or any other unsafe condition.
According to Tursellino's testimony, the plaintiff did not suggest the fall was caused by a rodent when he was questioned prior to the accident.
Further, defendants' foreman on duty at the time of the accident Hu Tu ("Tu"), responsible for inspecting and maintaining the premises, attested in his affidavit that he started his shift at 3:00 p.m. and, as a matter of his regular work routine, inspected the premises, including the ramp leading to tracks 17 and 18, and the subject area was free from any waste or debris (Tu Affidavit, ¶ 2, exhibit G). Tu received no prior complaints concerning vermin or debris in or around the area of the accident. In addition, the extermination records for three months prior to the accident (exhibit F), show that there were no rodent complaints or remediation requests regarding the area where plaintiff fell or its vicinity.
Further, there is no evidence that the rodent was "visible or apparent for a sufficient length of time" for defendants to discover and remedy the alleged unsafe condition. And, it was not reasonably foreseeable that a rodent appearing on the platform would startle plaintiff to such an extent that it would cause plaintiff to fall and sustain the alleged injuries. Plaintiff was not attacked or bitten by the rat.
In opposition, plaintiff argues that defendants' motion is procedurally and substantively defective. Defendants cannot use the Tu Affidavit to support their motion because Tu was not identified as a witness in defendants' discovery responses as required by CPLR 3101(a), so as to allow plaintiff to depose said witness. The court should sanction defendants by disregarding Tu's Affidavit and precluding him from testifying at trial because defendants' non-disclosure was "willful, deliberate and contumacious" (CPLR 3126).
Plaintiff notes in opposition that defendants failed to use the proper caption in its Notice of Motion and failed to attach all pleadings and that such failure constitutes a fatal flaw to defendants' motion.
Further, defendants had both actual and constructive notice of rodents at the premises and the appearance of the rodent on the platform was reasonably foreseeable. According to plaintiff, piles of refuse and garbage, deposited by defendants and their vendors were stored within at a distance of approximately one or two tracks from the place of the accident and were "visible at one end of the station." Plaintiff also heard from "other people" and saw TV shows about garbage deposits at the Grand Central Terminal (exhibit B, pp. 23; 26-27) and rat infestation, for which defendants and their vendors have been cited by the New York City Department of Health ("DOH"), as shown in July 2006 DOH violations report (exhibit C, pp. 2-4).
Plaintiff submits a copy of reports from the website www.City-Data.com, showing that various vendors have also been cited for improper disposal of garbage and rodent infestation (exhibit C).
Defendants counter that their motion is not defective since defendants submitted the complaint, which they move to dismiss, and their answer, together with other documents.
Further, the Tu Affidavit merely confirms Turselino's testimony that the premises were maintained in a safe and reasonable manner and defendants' non-disclosure of Tu was not willful or contumacious.
Also, plaintiff's evidence is inadmissible since the DOH's reports are unauthenticated and the reports from a consumer data website ( www.City-Data.com) are unreliable since the website's disclaimer states that the information obtained from the NYC agencies' websites has been modified and may not be accurate. The information about vendors is irrelevant as the vendors are not located in any proximity to the accident area. And finally, plaintiff's assertion of general public's awareness that garbage was stored in certain areas of Grand Central Terminal or that rodent problem is common knowledge, is insufficient to establish notice or foreseeability so as to defeat summary judgment.
Discussion
As an initial matter, the court finds that defendants' failure to include the names of the co-defendants GM Pest Control, LLC, GM Pest Control of New York LLC and Tempco Inc. (the exterminator defendants) in the caption, is not fatal to defendants' motion.
The court adheres to the well-established principle that "mere technical defects in pleadings should not defeat otherwise meritorious claims, and that substance should be preferred over form"( Great Eastern Mall, Inc. v Condon, 36 NY2d 544, 369 NYS2d 672). Furthermore, pursuant to CPLR 2109 (c), "[w]hile in a complaint, the title of the action must include the names of all parties, in all other pleadings it is sufficient to state the name of the first named party on each side with an appropriate indication of any omissions" (CPLR § 2109 [c]).
The instant motion is directed at the dismissal of the complaint and not of any cross-claims of the newly consolidated defendants. In addition, plaintiff failed to show any prejudice resulting from defendants' inadvertent omission, or that such omission was a "strategy to obtain a tactical advantage" over plaintiff ( see Haidt v Kurnath 86 AD3d 935 , 927 NYS2d 256 [4th Dept 2011]), citing Brown v Aurora Sys., 283 AD2d 956, 957, 723 NYS2d 793 [4th 2001]).
Likewise, the court finds that defendants' failure to attach the pleadings of other co-defendants does not render the instant motion procedurally defective. Counsel for defendants have provided all necessary documentary evidence as supporting papers to the instant motion, attaching a copy of the complaint, which they are moving to dismiss, their answer with affirmative defenses and other admissible documents ( cf. Welton v Drobnicki, 298 AD2d 757, 757, 749 NYS2d 288 [3d Dept 2002], citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [by moving for judgment as a matter of law without submitting the complaint on which it was moving, plaintiff "failed to satisfy [its] initial burden on the motion, thereby obviating any issue as to the sufficiency of the papers submitted in opposition thereto"]).
Finally, plaintiff seeks to preclude defendants from offering the affidavit of Hu Tu on the ground that this witness was not disclosed during discovery.
The court finds this argument unavailing. It is established that "[p]reclusion is a drastic remedy" and should be denied absent any showing that the party's conduct was "willful and contumacious" ( Spitzer v 2166 Bronx Park East Corporations, 284 AD2d 177, 177 [1st Dept 2001]). While defendants offer no explanation or excuse for its failure to reveal the existence of the subject witness to plaintiff earlier in the discovery process, plaintiff presented no evidence, aside from its conclusory assertions, that defendants' non-disclosure was willful, contumacious, or in bad faith ( see Martin v Triborough Bridge and Tunnel Authority , 73 AD3d 481 , 901 NYS2d 193 [1st Dept 2010] , citing Nathel v Nathel , 55 AD3d 434 , 866 NYS2d 153 [preclusion unwarranted without a showing that the noncompliance was willful or prejudicial to the party seeking preclusion]; McDermott v Alvey, Inc., 198 AD2d 95, 603 NYS2d 162 [1st Dept 1993]; cf. Franz v School Const. Authority, 2008 WL 692560 [Sup Ct, New York County 2008][Trial Order] [failure of defendant to comply with multiple discovery demands, a court order and a final letter from plaintiff, rose to the level of willful and contumacious conduct]).
In addition, the court discerns no prejudice to plaintiff in the event that the court considers the Tu Affidavit in deciding defendants' motion. There is no indication that Tu's deposition testimony would reveal facts which would permit plaintiff to successfully oppose defendants' motion. And even if the court disregards the Tu Affidavit, as explained below, defendants' proof is sufficient to establish prima facie entitlement to summary judgment.
Summary Judgment
It is a well-established principle of law that a landowner is under a duty to maintain its property in a reasonably safe condition under the existing circumstances, which include the likelihood of injury to a third party, the potential that such an injury would be of a serious nature, and the burden of avoiding the risk ( Basso v Miller, 40 NY2d 233, 241; Zuk v Great Atl. Pac. Tea Co., Inc. , 21 AD3d 275 [1st Dept 2005]). In order to subject a property owner to liability for a hazardous condition on its premises, a plaintiff must demonstrate that the owner created, or had actual or constructive notice of the dangerous condition which precipitated the injury ( Piacquadio v Recine Realty Corp., 84 NY2d 967, 969; Alexander v New York City Tr. , 34 AD3d 312 , 313 [1st Dept 2006]; 2B Warren's Negligence, Landlord and Tenant, s 6.01 et seq.) To constitute constructive notice, a dangerous condition must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy the condition ( see Gordon v American Museum of Natural History, 67 NY2d 836; Lemonda v Sutton, 268 AD2d 383, 702 NYS2d 275 [1st Dept 2000]).
A defendant, who moves for summary judgment in a negligence case involving defective or dangerous condition present on property, has the initial burden of making a prima facie showing that it neither created the hazardous condition, nor had actual or constructive notice of it ( Manning v Americold Logistics, LLC , 33 AD3d 427 , 822 NYS2d 279 [1st Dept 2006]; Mitchell v City of New York , 29 AD3d 372 , 815 NYS2d 55 [1st Dept 2006]). "Once a defendant establishes prima facie entitlement to such relief as a matter of law, the burden shifts to plaintiff to raise a triable issue of fact as to the creation of the defect or notice thereof" ( Kesselman v Lever House Rest. , 29 AD3d 302 , 816 NYS2d 13 [1st Dept 2006]; Bosman v Reckson FS Ltd. Partnership , 15 AD3d 517 , 790 NYS2d 201 [2d Dept 2005]).
Defendants demonstrated that they had no actual or constructive notice of the alleged rodent condition which could have caused plaintiff's injuries. Specifically, the deposition testimony of Officer Tursellino that he did not observe any refuse or garbage or any other unsafe condition on the subject ramp or platforms approximately 20 minutes prior to the accident, and that no prior complaints were lodged with respect to rodent infestation in the subject area (exhibit E, pp. 8-9), and the exterminator company's reports for 2007 and 2008, noting "lots of flies" and "bugs," establish defendants' lack of actual or constructive notice of the presence of rats on the platform or ramp, as a matter of law ( see Gordon v American Museum of Natural History, 67 NY2d 836; Lemonda v Sutton, 268 AD2d 383, 702 NYS2d 275 [1st Dept 2000]).
Shifting the burden to plaintiff, the Court finds that the evidence offered by plaintiff is insufficient to raise a triable issue of fact so as to defeat defendant's prima facie showing ( Mayer v New York City Transit Authority, 39 AD3d 349, 833 NYS2d 476 [1st Dept 2007], citing Mitchell v City of New York , 29 AD3d 372 , 374, 815 NYS2d 55; Rosado v Home Depot , 4 AD3d 204 , 772 NYS2d 268 [1st Dept 2004][affirming dismissal of a complaint alleging injury caused by a fallen wood plank in a Home Depot store, since there was neither direct evidence nor sufficient circumstantial basis to infer that defendant was responsible for the hazard's creation]).
Nothing in the court's record establishes that the ramp or platform where plaintiff was allegedly startled by the rodent and fell, was otherwise dangerous or negligently maintained. Rather, the evidence adduced by plaintiff establishes nothing more than a possibility that a rodent, attracted by the garbage, may have appeared on the ramp within approximately one or two tracks from it. Plaintiff's evidence of the general knowledge of the alleged garbage deposits at Grand Central Terminal, including the information obtained from media sources; or the DOH's citations report, compiled one and half years prior to plaintiff's accident, which does not identify any violations for "rat infestation" or "exposed food" in the immediate vicinity of the area where plaintiff fell, are insufficient to establish constructive notice (exhibit C, pp. 2-4)( see, Piacquadio v Recine Realty Corp., 84 NY2d 967, 622 NYS2d 493, citing Gordon v American Museum of Natural History, 67 NY2d 836, 838, supra ["general awareness" that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused plaintiff's fall]).
The court notes that, contrary to defendants' contention, the NYC DOH's report submitted by plaintiff in opposition to summary judgment is admissible as public records. And in any event, plaintiff's burden, as an opponent, to proffer evidence in admissible form is not absolute, as contrasted with the movant, and thus, otherwise in admissable evidence may be used to defeat summary judgment if the in admissable evidence would be admissible at trial and raises questions of fact ( Berberi v Fifth Ave. Development Co., LLC, 20 Misc 3d 1106(A), 866 N.Y.S.2d 90 [Sup Ct, New York County 2008], citing Development Phillips v Joseph Kantor Company, 31 NY2d 307 [1972]; Buckley v J.A. Jones/GMO , 38 AD3d 461 [1st Dept 2007]; Levbarg v City of New York, 282 AD2d 239 [1st Dept 2001]).
Furthermore, such evidence cannot demonstrate a nexus between the alleged existence of the garbage piles, the appearance of the rat in the specific area of plaintiff's alleged accident and plaintiff's injuries. It is well established that the risk of injury as a result of defendant's conduct "must not be merely possible, it must be natural or probable" ( Pinero v Rite Aid of NY, 294 AD2d 251, 743 NYS2d 21 [1st Dept 2002]), i.e. plaintiff's injuries must be foreseeable ( Pinero v Rite Aid of NY, 294 AD2d 251, 743 NYS2d 21 [1st Dept 2002], citing Palsgraf v Long Is. R.R. Co., 248 NY 339[the risk of danger in the store assistant manager's act of passing the macaroni boxes over the half-filled wagon blocking the aisle, and plaintiff, while trying to "grab" the boxes hitting her knee against the wagon, losing her balance and fall, was minimal and unforeseeable as a matter of law]; see Legon v Petaks , 70 AD3d 457 , 898 NYS2d 445 [1st Dept 2010][the risk that a customer would move one of her feet under the stand and then trip when attempting to remove it was not foreseeable as a matter of law]; Di Ponzio v Riordan, 89 NY2d 578, 657 NYS2d 377).
The court finds that the risk of danger of plaintiff's fall after being frightened by a rat, scurrying across or along the ramp, is "as minimal and unforeseeable as a matter of law" ( Pinero v Rite Aid of NY, 294 AD2d 251, 743 NYS2d 21). Plaintiff was not injured by tripping over the rat, but, rather, by a sequence of events that could not have reasonably been foreseen or protected against ( Pinero, citing Palzgraf, supra). As such, the record provides no reasonable basis for a trier of fact to infer, without resorting to speculation, that defendants' negligence in allegedly storing garbage at the end of the station and attracting rodents, caused plaintiff's accident ( see Hartman v Mtn. Val. Brew Pub, 301 AD2d 570, 754, NYS2d 31 [2d Dept 2003], citing Schneider v Kings Highway Hosp. Center, 67 NY2d 743, 500 NYS2d 95).
Accordingly, since defendants established its prima facie entitlement to judgment as a matter of law and plaintiff's opposition failed to raise a triable issue of fact, defendants' motion is granted and plaintiff's claims as against defendants Metro-North Commuter Railroad and Metropolitan Transportation Authority are severed and dismissed.
Conclusion
Based on the foregoing, it is hereby
ORDERED that the motion of defendants Metro-North Commuter Railroad and Metropolitan Transportation Authority pursuant to CPLR 3212 to dismiss the complaint of plaintiff James G. Mc Hugh is granted, and the claims as against said defendants are severed and dismissed; and it is further
ORDERED that the action shall continue as against the remaining defendants; and it is further
ORDERED that the Clerk may enter judgment accordingly.
This constitutes the decision and order of the Court.
Motion sequence 003 is decided in accordance with the annexed Memorandum Decision. It is hereby
ORDERED that the motion of defendants Metro-North Commuter Railroad and Metropolitan Transportation Authority pursuant to CPLR 3212 to dismiss the complaint of plaintiff James G. Mc Hugh is granted, and the claims as against said defendants are severed and dismissed; and it is further
ORDERED that the action shall continue as against the remaining defendants; and it is further
ORDERED that the Clerk may enter judgment accordingly.
This constitutes the decision and order of the Court.