Henry T. Lau, Appellant,v.Margaret E. Pescatore Parking, Inc. et al., Respondents.BriefN.Y.November 16, 2017To Be Argued By: Kenneth J. Gorman, Esq. Time Requested: 15 Minutes NEW YORK SUPREME COURT APPELLATE DIVISION-FIRST DEPARTMENT HENRY T. LAU, Plaintiff-Appellant -against- MARGARET E. PESCATORE PARKING, INC. and TAI MING DEVELOPMENT CORP., Defendants-Respondents BRIEF FOR PLAINTIFF-APPELLANT Kenneth J. Gorman, Esq., P.C. 225 Broadway, Suite 307 New York, NY 10007 (212) 227-2245 Appellate Counsel to Plaintiff-Appellant New York County Clerk’s Index # 103807/10 Printed on Recycled Paper i TABLE OF CONTENTS TABLE OF AUTHORITIES.........................................iii PRELIMINARY STATEMENT..........................................1 INTRODUCTION...................................................2 FACTUAL AND PROCEDURAL HISTORY.................................7 ALLEN YI’S INVESTIGATION..................................8 NON-PARTY WITNESS STATEMENTS..............................8 PLAINTIFF’S WIFE AND DAUGHTER ARRIVED AT THE SCENE........9 CERTIFIED GOOGLE MAP STREETVIEW™ IMAGES..................10 DEFENDANTS’ TESTIMONY: PESCATORE.........................11 DEFENDANTS’ TESTIMONY: NORMAN LAU KEE....................14 NON-PARTY WITNESSES’ TESTIMONY: HERMAN HO................15 NON-PARTY WITNESSES’ TESTIMONY: JOSEPH TSANG.............16 DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT: PESCATORE...........17 DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT: TAI MING............17 PLAINTIFF’S OPPOSITION AND CROSS-MOTION FOR SPOLIATION........18 DECISION AND ORDER APPEALED FROM..............................19 QUESTIONS PRESENTED...........................................20 ARGUMENT......................................................21 POINT I PESCATORE FAILED TO MEET ITS BURDEN FOR SUMMARY JUDGMENT LANDLORD’S DUTY OF CARE..................................23 REGARDING NOTICE.........................................24 ii PESCATORE FAILED TO MEET ITS BURDEN THAT IT DID NOT CREATE THE DANGEROUS CONDITION..................................26 PESCATORE FAILED TO MEET ITS BURDEN THAT IT DID NOT HAVE CONSTRUCTIVE NOTICE OF SAID CONDITION....................40 POINT II: TAI MING’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED..............................44 CONCLUSION....................................................51 PRINTING SPECIFICATIONS.......................................52 iii TABLE OF AUTHORITIES Cases Abrams v. Gerold, 37 AD2d 391 [1st Dept. 1971]............ 41, 49 Abrams v. Pecile, 115 AD3D 565 [1st Dept. Mar. 20, 2014] ...... 34 Alvarez v. Prospect Hospital, 68 NY2d 320 [1986] .......... 27, 40 Amendola v. City of New York, 89 AD3d 775 [2d Dept. 2011]. 41, 43 Appel v. Muller, 262 NY 278 [1933]............................ 46 Backiel v. Citibank, 299 AD2d 504 [2d Dept. 2002]............. 46 Basso v. Miller, 40 NY2d 233 [1976]........................... 24 Batton v. Elghanayan, 43 NY2d 898-900 [1978].................. 45 Baynes v New York, N. H. & H. R. Co., 279 AD 598 [2d Dept 1951].............................................. 24 Beck v. Carter, 68 NY 283, 292 [1877]......................... 46 Bettineschi v. Healy Elec. Contracting, Inc., 73 AD3d 1109, 1110 [2d Dept. 2010]......................................... 5 Birnbaum v. New York Racing Assn., Inc., 57 AD3d 598, 598–599 [2d Dept. 2008]..................................... 41 Birthwright v. Mid-City, 268 AD2d 401 [2d Dept. 2001]......... 25 Bisulco by Bisulco v. New York City, 186 AD2d 84, 85 [1st Dept. 1992] ............................................ 35 Blake v. City of Albany, 48 NY2d 875, 877 [1979] ...... 43, 45, 49 Bolta v. Lohan, 242 AD2d 356 [2d Dept. 1997].............. 42, 49 Bouima v. Dacomi Inc., 36 AD3d 739 [2d Dept. 2007]............ 44 Brito v. Manhattan & Bronx Surface Transit Operating Auth., 188 AD2d 253 [1st Dept. 1992] .................................... 37 Butler v. Rafferty, 100 NY2d 265, 270 [2003].................. 24 Cameron v. Bohack Co., 27 AD2d 362 [2d Dept. 1967] ............. 50 Campbell v. A&P, 257 AD2d 642 [2d Dept. 1999]................. 25 Cantanzaro v. King Cullen Grocery Co. Inc., 194 AD2d 584 [2d Dept. 1993] ............................................. 50 Colt v. Great Atl. & Pac. Tea Co., 209 AD2d 294, 295 [1st Dept. 1994]........................................ 28, 42 Corprew v. City of New York, 106 AD3d 524 [1st Dept. 2013] 26, 27 Couluris v. Harbor Boat, 31 AD3d 686 [2d Dept. 2006].......... 45 Curtis v. Dayton Beach Park, 23 AD3d 511 [2d Dept. 2005]...... 25 Dalton v. ETS, 294 AD2d 462-3 [2d Dept. 2002]................. 26 Dalzell v. McDonalds, 220 AD2d 638 [2d Dept. 1995]............ 44 De Los Angeles v. 397 Bway, 19 AD3d 574 [2d Dept. 2005].... 6, 48 DeClara v. Barber SS Lines, 309 NY 620 [1956]................. 24 Dima v. Morrow St., 31 AD3d 697 [2d Dept. 2006].............. 25 DiVetri v. ABM Janitorial Serv., Inc., 119 AD3d 486, 487 [1st Dept. 2014] .......................................... 5, 38 Faniel v. Marriott Corp., 204 AD2d 191 [1st Dept. 1994] ........ 50 Ferlito v. Great South Bay, 140 AD2d 408 [2d Dept. 1988]...... 45 Field v. City of New York, 302 AD2d 223 [1st Dept. 2003]...... 26 iv Fochtman v. Gilman, 9 AD2d 904 [2d Dep't 1959]................ 47 Ford v. Weishaus, 86 AD3d 421, 422 [1st Dept, 2011] ........ 6, 47 Gamer v. Ross, 49 AD3d 598, 600 [2d Dept. 2008]............... 39 Garcia v. City of New York, 99 AD3d 491 [1st Dept. 2012]...... 26 Gavallas v. HIP, 2006 NY AD LEXIS 15226 [2d Dept. 2006]....... 45 Gildea v. Harris Fine Realty & Traffic Co., 249 AD 775 [2d Dep't 1936]......................................... 46, 47 Giuffrida v. Metro North Commuter RR Co., 279 AD2d 403, 404 [1st Dept. 2001]............................................ 26 Golding v. Powell & Dempsey, 237 AD2d 510 [2d Dept. 1998]..... 25 Gonzalez v. NYCHA, 77 NY2d 663,670 [1991] ..................... 37 Gordon v. American Museum, 67 NY2d 836-7 [1986]........... 25, 45 Gordon v. Waldbaums Inc., 231 AD2d 673 [2d Dept. 1996] ......... 50 Guimond v. Vill. of Keeseville, 113 AD3d 895 [3d Dept. 2014]. 35, 36 Guzman v. Haven Plaza, 69 NY2d 559, 566 [1987]................ 44 Harrington v. 615 West 4th, 2 NY2d 476 [1957] ................. 46 Hayes v. South Shore Cruise Lines, 23 AD3d 530 [2d Dept. 2005] . 48 Healy v. ARP Cable, Inc., 299 AD2d 152, 154–155 [1st Dept. 2002]............................................ 38 Hecht v. Vanderbilt Assoc., 141 AD2d 696 [2d Dept. 1998]...... 24 Hecker v. NYCHA, 245 AD2d 131 [1st Dept. 1997] ................ 45 Huth v. Allied Maint. Corp., 143 AD2d 634 [2d Dept. 1988] ...... 50 Ingargiola v. Waheguru Mgmt., 5 AD3d 732-3 [2d Dept. 2004].... 45 Ingersoll v. Liberty Bank of Buffalo, 278 NY 1 [1938] .......... 37 Jackson v. NYCTA, 227 AD2d 181 [1st Dept. 1996]........... 42, 49 Joachim v. 1824 Church Ave., Inc., 12 AD3d 409, 410 [2d Dept. 2004]............................................. 28 Kiernan v. Edwards, 97 AD2d 750 [2d Dept. 1983], app. dism. 62 NY2d 617 [1984]........................... 41, 49 Kucera v. Waldbaums, 304 AD2d 531 [2d Dept. 2003]............. 26 Kurek v. Port Chester Hous., 18 NY2d 450 [1966]............... 24 Larkin Trucking v. Lisbon Tire Mart, 185 AD2d 614-5 [4th Dept. 1992] ............................................ 26 Lester v. Jolicofer, 120 AD2d 574 [2d Dept. 1986]......... 41, 49 Levitt v. County of Suffolk, 166 AD2d 421 [2d Dept. 1990]. 41, 49 Lewis v. MTA, 99 AD2d 246, 249 [1st Dept. 1984], affd. 64 NY2d 670 [1984].......................................... 25 Lezama v 34-15 Parsons Blvd, LLC, 16 AD3d 560, 560 [2d Dept. 2005]............................................. 28 Lolik v. Big V Supermarkets, 210 AD2d 703 [3d Dept. 1994]. 41, 48 Loughlin v. City of New York, 186 AD2d 176 [ 2d Dep't 1992], appeal denied, 81 NY2d 704 [1993]........... 32 Lowe-Barrett v. NYC, 28 AD3d 721-2 [2d Dept. 2006]............ 44 Madrid v. NYC, 42 NY2d 1039 [1977]............................ 25 Maganias v Scott Realty Co., 187 AD2d 417 [2d Dept 1992]...... 24 Mei Xiao Guo v. Quong Big Realty Corp., 81 AD3d 610, 610–611 v [2d Dept. 2011]......................................... 25, 41 Melnikov v. 249 Brighton Corp., 72 AD3d 760 [2d Dept.2010].... 25 Mercer v. NYC, 88 NY2d 955-6 [1996]........................... 25 Mertsaris v. 73rd Corp., 105 AD2d 67 [2d Dept. 1984] ........... 37 Mieles v. NYCHA, 280 AD2d 528 [2d Dept. 2001]................. 45 Milka v. Hernandez, 187 AD2d 1031 [4th Dept. 1992]........ 41, 49 Mondello v. DiStefano, 16 AD3d 637-8 [2d Dept. 2005].......... 26 Moorman v. Huntington Hosp., 262 AD2d 290 [2d Dept. 1999]..... 36 Morales v. NYC, 270 AD2d 239 [2d Dept. 2000].................. 46 Morell v. Peekskill Ranch Inc., 104 AD2d 492 [2d Dept. 1984]. 41, 49 Negri v. Stop n Shop, 65 NY2d 625-6 [1985]............ 25, 45, 50 Olan v. Farrell Lines Inc., 64 NY2d 1092-3 [1985] .............. 27 Olsen v. K Mart Corp., 04-CV-3648 (JMA), 2005 WL 2989546 [E.D.N.Y. Nov. 8, 2005]............................. 36 O'Rourke v. Castagnola, 246 AD 765 [2d Dept. 1935]............ 44 Pace v. IBM, 248 AD2d 690-1 [2d Dept. 1998]................... 26 Palumbo v. Innovation Communication Concepts, 251 AD2d 246 [1st Dept. 1998]............................................ 39 Patane v. NYC, 284 AD2d 513 [2d Dept. 2001]................... 45 Pearson v. Parkside, 27 AD3d 539 [2d Dept. 2006].............. 25 People v Burns, 281 AD2d 704, 705 [3d Dept. 2001], lve denied 96 NY2d 826 [2001]............................... 32 People v Young, 296 AD2d 588, 592 [3d Dept. 2002], lve denied 99 NY2d 536, 538, 541 [2002]..................... 32 People v. Stroman, 83 AD2d 370, 372 [1st Dept. 1981] .......... 32 People v. Toland, 2 AD3d 1053, 1055 [3d Dept. 2003]........... 32 Peskin v. NYCTA, 304 AD2d 634 [2d Dept. 2003]................. 26 Putnam v. Stout, 38 NY2d 607, 612 [1976]...................... 25 Quinn v. K-Mart Corp., 22 AD2d 988 [4th Dept. 1996] ............ 50 Restey v. Victory Markets, 127 AD2d 987 [4th Dept. 1987] ....... 50 Ritto v. Goldberg, 27 NY2d 887, 889 [1970].................... 24 Roark v. Hunting, 24 NY2d 470 [1969].......................... 24 Rogers v. Dorchester Assoc., 32 NY2d 553, 559 [1973] ....... 42, 49 Rose v. Da Ecib USA, 259 AD2d 258 [1st Dept. 1999] ............. 49 Rothbard v. Colgate Univ., 235 AD2d 675 [3d Dept. 1997]....... 26 Safran v. Amato, 155 AD2d 653 [2d Dept. 1989]............. 41, 49 Sanchez v. Irun, 83 AD3d 611, 612 [1st Dept. 2011] ........ 5, 47 Sappleton v. Metropolitan Suburban Bus Authority, 140 AD2d 684 [2d Dept. 1988]............................ 41, 49 Schneider v. Kings Hwy. Hospital Center, 67 NY2d 743, 735 [1986] ...................................................... 38 Scurti v. NYC, 40 NY2d 433 [1976]............................. 24 Seney v. Key Assoc., 15 AD3d 383-4 [2d Dept. 2005]............ 44 Shechter v. City of New York, 17 AD3d 124, 125 [1st Dept. 2005]............................................ 26 Stalter v. Prudential, 220 AD2d 577 [2d Dept. 1995]........... 24 vi Tashjian v. Strong & Assoc., 225 AD2d 907-8 [3d Dept. 1996] ......................................... 42, 49 Taylor v. NYCTA, 48 NY2d 903 [1979]........................... 45 Thomassen v. J&K Diner Inc., 152 AD2d 421 [2d Dept. 1989], app. dismd. 76 NY2d 771 [1990], rearg. den. 76 NY2d 889 [1990] ...................................................... 46 Thompson v. PA, 305 AD2d 581 [2d Dept. 2003].................. 45 Torelli v. NYC, 176 AD2d 119 [1st Dept. 1991], lv. den. 79 NY2d 754 [1992] .......................................... 37 Tosto v. Marra Bros., 275 AD 686 [2d Dept. 1949], judgment aff'd, 299 NY 700 [1949]........................... 32 Trepuk v. Frank, 56 NY2d 779 [1982], revsd. for reasons stated in op. of dissent in AD, 86 AD2d 578-9 [1st Dept. 1982] ..... 27, 41 Ulu v. ITT, 27 AD3d 554 [2d Dept. 2006]....................... 25 Vasquez v. RVA, 238 AD2d 407 [2d Dept. 1997]............... 6, 48 Vella v. Seacoast Towers A, 32 AD2d 813 [2d Dept. 1969]... 41, 49 Weigand v. United Traction Co., 221 NY 39 [1917].......... 41, 48 Weiser v. Dalvo, 184 AD2d 935 [3d Dept. 1992]............. 41, 49 Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].................................................. 27, 40 Yakkey v. Merrick Shopping Assoc., 258 AD2d 579 [2d Dept. 1999] 49 Treatises 5 N.Y.Prac., Evidence in New York State and Federal Courts § 3:4, Robert A. Barker and Vincent C. Alexander 2012 ......... 32 65 N.Y. Jur. 2d Highways, Streets, and Bridges § 389.......... 46 Prosser & Keaton on Torts, 5th ed., §39) ...................... 37 Restatement [2d] of Torts, §433[b], comment b ................. 37 1 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION, FIRST DEPARTMENT -------------------------------X HENRY T. LAU, Plaintiff-Appellant -against- MARGARET E. PESCATORE PARKING, INC. and TAI MING DEVELOPMENT CORP., Defendants-Respondents --------------------------------X Index No.: 103807/10 APPELLATE BRIEF PRELIMINARY STATEMENT The plaintiff-appellant Henry T. Lau (hereinafter the “plaintiff) submits this brief in connection with his appeal from an order of the Supreme Court, New York County (Silver, J.), dated December 23, 2005 (10-14)1, which granted the defendant-respondent Margaret E. Pescatore Parking, Inc. (hereinafter “Pescatore”) motion for summary judgment, dismissing the complaint and all cross claims insofar as asserted against it and defendant-respondent Tai Ming Development Corp.’s (hereinafter “Tai Ming”) cross motion for summary judgment, dismissing the complaint and all cross claims insofar as asserted against it. It is respectfully submitted that the order should be reversed and the plaintiff’s complaint reinstated. 1 Page numbers in parenthesis refer to the record on appeal. 2 INTRODUCTION On March 10, 2010, the plaintiff was walking down Bayard Street in New York, when he allegedly tripped and fell on a cord that was tied from a street sign to a parking barrel in front of a parking lot owned by defendant Tai Ming and operated by defendant Pescatore. Herman Ho and Joseph Tsang witnessed the plaintiff’s accident. Mr. Ho and Mr. Tsang stated that they routinely passed the parking lot and had seen the subject barrel being frequently moved around. They thought that the barrel was used to prevent cars from blocking the parking lot’s entrance. On March 14, 2010, plaintiff’s attorney put Pescatore on formal notice about the plaintiff’s accident and informed Pescatore to put its insurance carrier on notice about plaintiff’s accident. On March 15, 2010, Allen Yi, a lawyer associated with plaintiff’s attorney went to the accident site, informed John Maruffi, Pescatore’s manager about the incident and that the plaintiff had tripped over a wire that was affixed to the traffic barrel and street sign. Mr. Yi asked John Maruffi if Pescatore owned the two circular traffic barrels. John Maruffi candidly responded in the affirmative. Mr. Yi video recorded the conversation he had with John Maruffi. In addition to Mr. Yi’s investigation, the plaintiff exchanged certified Street view Images supplied by Google Maps 3 of the area in question taken in 2009, which depicted another one of the traffic barrels which the lot admitted belonged to it in the exact same location that the traffic barrel was placed at the time of the plaintiff’s accident. The street view Images also established that Pescatore had a practice of placing a traffic barrel in the exact location where plaintiff’s accident occurred at least 11 months prior to the incident. Pescatore did not produce John Maruffi for a deposition. Instead, it produced his son, Anthony Maruffi, who was a parking lot attendant in March 2010. Anthony had no knowledge of the plaintiff’s accident and could not recall if he was working on March 10, 2010, the day of the incident. Anthony testified that the parking lot only used a rectangular orange and white traffic barrel and denied that the lot used a circular traffic barrel. After being confronted with his father’s video taped statement that Pescatore owned the circular traffic barrel, Anthony brazenly stated that there was nothing about his testimony that he wanted to change. The Supreme Court granted both defendants’ motions for summary judgment. The court, for reasons which are not clear, declined to take take John Maruffi’s video-taped admission into consideration. It dismissed plaintiff’s complaint against Pescatore finding that it was speculative to assume that it 4 created the dangerous condition. It dismissed the complaint against Tai Ming on the ground that it was an out of possession landowner based on an oral lease agreement who lacked notice of the dangerous condition. Although the plaintiff moved for spoliation sanctions against Pescatore for failing to retain the string and/or wire which was tied to the street sign and barrel, the court found the issue academic in light of the fact that it dismissed the complaint. It is respectfully submitted that the order should be reversed. Regarding Pescatore, the certified Google Map street view images showed that a traffic barrel which Anthony Maruffi admitted Pescatore owned, was in the same location 11 months prior to the accident that the subject traffic barrel was in when the plaintiff tripped over the wire that was tied to it. In addition, the photographic evidence showed that Pescatore had a practice of tying traffic barrels to the fence on its property and the street sign which caused plaintiff to trip, with the same type of rope which caused plaintiff’s accident. This clearly showed that Pescatore had control over the barrels and had a practice of tying them to stationary objections, including to the sign which it was tied to on the day in question. This practice raised a question of fact as to whether Pescatore created the condition which caused plaintiff’s accident. Its failure to 5 explain this practice warranted that its motion for summary judgment be denied. We respectfully submit that “the circumstantial evidence provides a nonspeculative basis for plaintiff's version of the accident” (DiVetri v. ABM Janitorial Serv., Inc., 119 AD3d 486, 487 [1st Dept. 2014]). Given John Maruffi’s video-taped admission that Pescatore owned the traffic barrel in conjunction with the non-party witness statements and deposition testimony, Pescatore failed to eliminate triable issues of fact as to whether whether it created or had actual or constructive notice of the hazardous condition (see, Bettineschi v. Healy Elec. Contracting, Inc., 73 AD3d 1109, 1110 [2d Dept. 2010]). In addition, Tai Ming, failed to establish that it was not responsible for maintaining the premises by way of an oral lease. It offered no testimony or other evidence as to whether this oral agreement included a right to re-enter and a duty to repair. Thus, Tai Ming failed to meet its burden for summary judgment (see, Sanchez v. Irun, 83 AD3d 611, 612 [1st Dept. 2011][“Defendants assert only that the tenant of the basement apartment controlled the interior stairway by reason of an oral lease. However, defendants offer no testimony or other evidence of whether this oral agreement included a right to re-enter and a duty to repair”]; Ford v. Weishaus, 86 AD3d 421, 422 [1st Dept, 6 2011][“Defendant failed to establish her prima facie entitlement to judgment as a matter of law, and there exists a triable issue as to whether a subsequent written agreement altered defendant's contractual obligations to repair and maintain the building”]). In addition, there was a question of fact as to whether Tai Ming had notice of the dangerous condition. Norman Lau Kee, Tai Ming’s vice president testified that he had been parking his car at the subject parking lot “Twice a week on average” for the last 20 years. Thus, there are questions of fact as to whether Mr. Kee observed the defective condition prior to the accident and took no action to remedy it (see, Vasquez v. RVA, 238 AD2d 407 [2d Dept. 1997]; De Los Angeles v. 397 Bway, 19 AD3d 574 [2d Dept. 2005][holding that where a principal has an office at the premises, the entity cannot claim lack of notice as this issue is to be determined based on a holistic view of the evidence]). 7 FACTUAL AND PROCEDURAL HISTORY The instant action is to recover damages for serious injuries the plaintiff sustained on March 10, 2010, when he tripped over a rope/wire tied between a “no standing” traffic signage pole and round traffic barrel located at 98 & 100 Bayard Street in New York County (31, 155). On March 14, 2010, 4 days after the incident, plaintiff’s attorney put Pescatore on formal notice about the plaintiff’s accident and informed Pescatore to put its insurance carrier on notice about plaintiff’s accident (354). On March 15, 2010, Allen Yi, an attorney associated with the Law Offices of Wade T. Morris, went to the accident site, informed Pescatore’s manager about the incident and that the plaintiff had tripped over a wire that was affixed to the traffic barrel and street sign (357). On March 24, 2010, 2 weeks after the incident, plaintiff commenced this action against the defendants to recover damages for the personal injuries he sustained by filing a summons and verified complaint (25-34). Tai Ming served its verified answer which denied the material allegations of the complaint and asserted various affirmative defenses on or about May 11, 2010 (66-73). Pescatore served its verified answer with cross claims on or about June 22, 2010 (40-46). 8 ALLEN YI’S INVESTIGATION As noted above, on the night of March 14, 2010, Allen Yi, an attorney associated with the law offices of Wade T. Morris, went to 90-100 Bayard Street and inspected the accident location (357). Mr. Yi video recorded the area in question and observed three orange traffic barrels (357). Two of the traffic barrels were round and one was rectangular (357). On March 15, 2010, the following day, Mr. Yi returned to the accident scene and spoke with John Maruffi, the manager of the Pescatore parking (357). Mr. Yi asked John Maruffi if Pescatore owned the two circular traffic barrels (357). John Maruffi candidly responded in the affirmative (357). Mr. Yi video recorded the conversation he had with John Maruffi (357, 367). NON-PARTY WITNESS STATEMENTS The plaintiff obtained affidavits from Henry Ho and Joseph Tsang, who both witnessed the accident as passersby (387, 389). Mr. Ho and Mr. Tsang stated that the accident occurred in front of 98 & 100 Bayard Street, in New York County (Id). They were both able to observe the traffic barrel that was tied to a pole containing a traffic sign that said "no standing". The rope or wire was hanging less than a foot off the ground (Id). Both non-party witnesses frequently walked along Bayard Street during the day and occasionally at night. Mr. Ho and Mr. 9 Tsang believed that the subject barrel belonged to the parking lot operating at or near the aforementioned location (387, 389). These witnesses stated that the parking lot had 2 other similar orange and white traffic barrels and that they were moved around a lot (Id). Generally, at least one traffic barrel would be near or adjacent to the parking lot booth on one side of the lot and the other would be at the other end of the lot in the street near the curb (387, 389). At the time of the incident Mr. Ho and Mr. Tsang were at the subject location and both observed the plaintiff walking past them down the street. After the plaintiff walked a few feet past them, Mr. Ho and Mr. Tsang heard a loud crash and turned around. They both observed that the plaintiff had fallen and that his legs were tangled with the rope that connected the subject traffic barrel with the street sign (or pole). Both non- party witnesses waited with the plaintiff at the accident scene until the ambulance arrived (Id). PLAINTIFF’S WIFE AND DAUGHTER ARRIVED AT THE SCENE After the plaintiff fell his wife Maria Lau and his daughter, Elizabeth Ng came to the accident scene (244, 256). Elizabeth testified that when she arrived at the accident scene, the weather was cold, that it was nighttime and that the area was dark (256). CERTIFIED GOOGLE MAP STREETVIEW™ IMAGES 10 Certified Street view Images supplied by Google Maps of the area in question taken in 2009 depict one of the traffic barrels that is unquestionably controlled by the lot in the exact same location that the traffic barrel was placed at the time of the plaintiff’s accident (396-397).2 Specifically, the traffic barrel was in the street, directly across from the street signpost that the subject traffic barrel was affixed to on the night in question. The only difference was that the barrel depicted in the Google Map Street view images was the rectangular barrel, which Anthony Maruffi admits the lot owns, as opposed to the circular traffic barrel that was affixed to the street sign on the night in question. In case there is any doubt, the images are compelling in that while the square orange and white barrel is different than the subject barrel, below is a zoomed in photo of both barrels. The markings on the barrel “BAY 100” demonstrate that they are one and the same. This distinction makes no difference as John Maruffi, 2 A note about the google certified documents. The photo at 396 is the master photo that makes a 360º viewable image on Google maps. This 360º panorama is then viewed in flat images (or slices) when one browses google maps on the computer. Therefore the photos at 397 are slices or pieces of the larger 360 view in full color and part of the certified documents. In fact anyone with internet access, including the Court, can view these images at anytime by going to https://www.google.com/maps typing in 100 Bayard Street, NY, NY 10013. After selecting the address one can then turn on street view, pull up the view/slice of the lot and use the feature Google calls “timeline” in the upper left corner where it normally displays the date of the most recent (here Sept 2014) lot image they have on file. One can then turn back the timeline to April 2009 and view the images from that time or any other time google obtained street view images. In doing so the Court will see the exact same images at 397 of the record. 11 Pescatore’s manager admitted on videotape that Pescatore owned the circular barrel that was involved in plaintiff’s accident. The street view Images also established that Pescatore had a practice of placing a traffic barrel in the exact location where plaintiff’s accident occurred at least 11 months prior to the incident. The photographs also showed that the circular barrel had the letters “LOT” written on it in big bubble letters three times. This established that Pescatore owned and controlled these barrels. DEFENDANTS’ TESTIMONY: PESCATORE Pescatore did not produce John Maruffi for a deposition despite the fact that he was the manager at the time in question and admitted on video-tape that Pescatore owned the rectangular and circular traffic barrels (357, 364). Instead, Pescatore produced Anthony Maruffi, John Maruffi’s son. In March 2010, Anthony Maruffi was a parking lot attendant (180). Anthony Maruffi testified that he had worked at the subject parking lot for 20 years (179). He was in the process of taking over his father’s management responsibilities at the time of his deposition (Id). As an attendant, Anthony merely collected money, “worked the tickets out” and “parked the cars” (179). He had nothing to do with the bookkeeping, hiring and firing of employees and other managerial responsibilities (179). 12 Anthony identified the rectangular orange and white traffic barrel (which was also referred to as a square traffic barrel) depicted in the photographs presented to him. He claimed that Pescatore only used this rectangular traffic barrel in connection with operating the parking lot (183). There was a sign affixed to the rectangular barrel in the photos. The sign was attached to the barrel with a cord (184). The sign contained the word “park” and had an arrow (184). Anthony stated that this sign was always affixed to the rectangular traffic barrel and that it was never removed (184). However, the certified street view Google Map images that were taken of the site in April 2009, 9 months before plaintiff’s accident, showed the rectangular traffic barrel without that sign (396-397). The barrel is in the street, adjacent to the sidewalk and directly in front of the street sign that the circular barrel was affixed to on the night in question (Id). Anthony was shown another picture which contained the circular traffic barrel which his father admitted that Pescatore owned (188). That traffic barrel was affixed to the fence with a rope or wire. The fence was part of Pescatore’s parking lot (188). Anthony claimed that he did not know how or why the circular traffic barrel ended up on defendants’ property tied to its fence (189). 13 Simply put, these traffic barrels were used by Pescatore at all relevant times. Anthony Maruffi’s testimony directly contradicted his father’s video taped statement taken only 5 days after the incident. When Mr. Yi spoke to John Maruffi 5 days after plaintiff’s accident he had no motive to lie as he was not aware of the incident prior to his conversation with Mr. Yi. Conversely, it was apparent that Anthony Maruffi testified the way he did because he knew that the circular traffic barrel was involved with plaintiff’s accident and he was doing everything to distance Pescatore from it. Anthony had no personal knowledge of the events surrounding plaintiff’s accident. In fact, Anthony was deposed on May 21, 2012, and only first found out about plaintiff’s accident a few months before his deposition when his father told him about this lawsuit (180). More importantly while Anthony testified that he was a parking lot attendant at the time in question, he could not recall whether he was working on the day of plaintiff’s accident (180). Regarding Pescatore’s leasehold rights in connection with subject parking lot, Anthony did not even know if Pescatore had a lease agreement with Tai Ming (191). In fact, when questioned if he knew whether Pescatore had a written lease for operating, controlling and maintaining the subject parking lot, his response 14 was to ask “[t]here's a lease agreement?” (191). He then conceded that he did not know whether Pescatore had a lease agreement with Tai Ming (id). Anthony Maruffi did not even know if “Pescatore's [kept] any records regarding the parking lot” (192). At the end of his deposition, Anthony was confronted with the videotaped admission his father gave 5 days after the accident where he admitted that Pescatore had owned the round traffic barrel that was in the direct spot where the barrel was that was affixed to the street sign on the night in question (192). The video was played for Anthony, who admitted that he understood everything his father said on the video (193). However, after viewing the video, Anthony stated that there was nothing about his testimony that he wanted to change (193). NORMAN LAU KEE Tai Ming produced its vice president, Norman Lau Kee, who had been Tai Ming’s vice president for the past 40 years (277). Mr. Kee testified that Pescatore was the leaseholder of the subject parking lot; Pescatore began leasing the parking lot approximately 20 years ago (277). However, Pescatore’s lease expired about 12 years ago (278). Since that time, Pescatore did not have a formal lease agreement with Tai Ming; it was merely an oral month-to- month lease (287). 15 Mr. Kee parked his vehicle in the subject parking lot at least 2 times per week (289). However, Mr. Kee claimed that he had never seen a traffic barrel anywhere near the subject parking lot until after he was served with process in this action (281). Nevertheless, he agreed one of the traffic barrels in question is in fact tied to its fence on its property (283-284). Non-party witnesses’ testimony Herman Ho Mr. Ho worked with the plaintiff at the Charles B. Wang Community Health Center (400). On the night in question, Mr. Ho was walking with the group heading towards the intersection of Bayard and Baxter Streets after eating dinner with a group of coworkers (401). It was either 9:00 p.m. or 9:30 p.m. at night and they were heading to the train station (Id). As Mr. Ho headed towards the intersection of Baxter and Bayard, he saw the plaintiff walking towards him in the opposite direction (401). The plaintiff was walking at a leisurely pace and passed Mr. Ho (401). Mr. Ho then heard a “crashing sound, like something falling” (401). Ho turned around and saw the plaintiff on the ground with a wire around his leg (401). The wire was attached to a traffic barrel in the street and street sign or street pole on the sidewalk (401). 16 The wire was “pretty thin”, approximately 3/8” thick (401). The wire was affixed to the midsection of the barrel and affixed to the street sign; it was approximately 3” off the ground (402, 409). He helped take the wire off plaintiff’s leg while Raymond, one of his coworkers, called the plaintiff’s wife and an ambulance (402). Mr. Ho passed the area in question about 2 to 3 times per week during lunchtime, between 1:00 p.m. to 2:00 p.m. (402). He identified photographs of the orange and white traffic barrels utilized by Pescatore (403). The barrels were not always in the same place when he passed the parking lot (403). He saw a person move the barrels around; he thought the barrels were being moved to permit the cars to go through the barrels because they might have been obstructing traffic (403). JOSEPH TSANG Mr. Tsang also worked with the plaintiff and was walking with Mr. Ho after having dinner that evening (156). After the plaintiff passed him he heard him fall and then scream out3 (156). Mr. Tsang saw that the top of the subject traffic barrel was attached to the street sign (157). Mr. Tsang routinely walked by the subject parking lot once or twice a week at approximately 1:00 p.m. (158). He had seen the 3 Mr. Tsang thought that the plaintiff’s accident occurred at 8:30 p.m. (160) 17 subject round traffic barrel in the vicinity of the parking lot when he walked by the lot (Tsang’s EBT at p. 20-21). The barrel would not always be in the same area; it was moved around the area of the lot (158-159). Mr. Tsang thought that the barrels were used to prevent cars from blocking the entrance to the parking lot (160). DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT PESCATORE By notice of motion dated December 26, 2013, Pescatore moved for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it (16-24). Pescatore argued that the parking lot was not responsible for the barrel or cord over which plaintiff allegedly tripped over (19). It further argued that the condition was an open and obvious and not inherently dangerous (19). In addition, Pescatore asserted that plaintiff fell in front of a neighboring property that it neither owned nor maintained and thus did not owe a duty to the plaintiff (22). TAI MING By notice of cross motion dated March 10, 2014, Tai Ming cross-moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it (199-211). It argued, without any evidentiary support, that neither the pole or the 18 barrel were on its property. It further argued that there was no evidence as to how the cord was tied or who tied it to the sign and barrel or how long the condition existed prior to the time of the accident and that it did not have notice of the condition (202-211). PLAINTIFF’S OPPOSITION AND CROSS-MOTION FOR SPOLIATION On or about April 9, 2014, the plaintiff opposed defendants’ motions for summary judgment and cross-moved for spoliation sanctions against Pescatore (293-352). With regard to Pescatore, plaintiff argued that it failed to meet its burden for summary judgment because it failed to demonstrate that it did not create the hazardous condition which caused plaintiff to trip and fall (313-327). Plaintiff further argued that Pescatore failed to meet its burden with regard to notice as it did not submit any evidence as to when the area in question was last inspected prior to plaintiff’s accident (327-336). Regarding Tai Ming, plaintiff argued that it failed to meet its burden for summary judgment as it did not submit any evidence that the street sign was not within its property line. Plaintiff further argued that Tai Ming failed to submit any evidence that the street sign was not within its property line. In addition, it failed to submit any evidence with regard to its 19 maintenance responsibilities for the subject parking lot (336- 341). Regarding plaintiff’s cross motion for spoliation sanctions against Pescatore, plaintiff noted that he put Pescatore on notice of the incident 4 days after the accident and his attorney personally informed John Maruffi, Pescatore’s manager about the accident and that plaintiff had tripped over the wire. Moreover, John Maruffi admitted that Pescatore owned the wire and it was critical to establishing that Pescatore created the condition or had notice of the hazard (342-351). DECISION AND ORDER APPEALED FROM In a decision and order dated December 23, 2014, the Supreme Court, New York County (Silver, J.), granted both defendants’ motions for summary judgment and dismissed the complaint (10-14). Regarding Tai Ming, the Court found dismissal was warranted because Kee claimed that he had no notice of the barrels and Pescatore was responsible for maintaining the premises (12-13). Regarding Pescatore, the court acknowledged the admissions John Maruffi made to plaintiff’s counsel (12). However, the court opined that Anthony Maruffi’s testimony that Pescatore did not own or control the barrel or cord in question was sufficient to make out a prima facie case (13). 20 For reasons which are not clear, the court did not take John Maruffi’s video-taped admissions into consideration. It opined that while circumstantial evidence could defeat a motion for summary judgment, there was “no evidence or issue of fact as to who created the defective condition outside of pure speculation” (13). The court stated: In drawing every inference in favor of Plaintiff, including that Defendant Pescatore owned the barrel, that the rope was tied between the sign and the barrel, and that Plaintiff tripped and fell over this defect. Plaintiff's explanation and evidence as to Defendant Pescatore' s creation of the defect consists of a series of pictures from 2009 and 2011 that show that there were similar barrels on Defendant Pescatore's property and close to the area where Plaintiff's accident occurred. Further, Plaintiff attaches two pictures dated 5/21/12 and 9/21/11 which depict a similar barrel to the one in question tied to Defendant Pescatore's fence. Even, again, drawing all inferences in favor of the Plaintiff, the explanation of the creation the defect is not enough to reasonably infer that the condition was created by Defendant Pescatore. (12). As the court dismissed the complaint against Pescatore, it did not find the need to address the issue of spoliation sanctions (12). Plaintiff appeals (2-3). QUESTIONS PRESENTED 1) Did Pescatore fail to meet its burden for summary judgment by not addressing the circumstantial evidence with regard to its liability? [Yes]. 21 2) Did the trial court err in granting Tai Ming’s motion for summary judgment as there are questions of fact as to whether it had notice that Pescatore routinely created a dangerous condition on its property? [Yes] 3) Is the plaintiff entitled to spoliation sanctions against Pescatore for its failure to preserve the rope/wire which plaintiff tripped over? [Yes] ARGUMENT We respectfully submit that both defendants’ motions should have been denied. First, Pescatore failed to meet its burden for summary judgment as it failed to demonstrate that it did not create the hazardous condition which caused plaintiff to trip and fall. Pescatore also failed to meet its burden with regard to notice as it failed to offer any evidence as to when the area in question was last inspected prior to plaintiff’s accident. The witness it produced, Anthony Maruffi was only informed of the plaintiff’s accident a year and a half after the incident. Lastly, even assuming arguendo defendants made a prima facie case, Plaintiff raised significant issues of fact using compelling circumstantial photographic evidence as well as witness testimony. Anthony Maruffi could not recall if he worked at the parking lot on the day in question and did not produce any records with regard to inspecting the parking lot and the position of the 22 traffic barrels. While Anthony denied that the subject traffic barrel belonged to Pescatore, his father, John Maruffi, who was Pescatore’s manager at all relevant times, conceded on videotape that Pescatore owned the subject traffic barrel. Moreover, the certified Google Map street view images showed that a traffic barrel which Anthony Maruffi admitted Pescatore owned, was in the same location 11 months prior to the accident that the subject traffic barrel was in when the plaintiff tripped over the wire that was tied to it. In addition, Pescatore failed to explain how two other similar traffic barrels had rope or wire affixing either their sign to the barrel or the barrel to their fence. Given this evidence in conjunction with the non-party witness statements and deposition testimony, we respectfully submit that Pescatore’s motion should have been denied. Tai Ming also failed to meet its burden for summary judgment. Its vice president parked his vehicle at the parking lot several times a week for the past 20 years. In addition, it failed to submit any evidence with regard to its maintenance responsibilities for the subject parking lot. The lease agreement which expired 12 years prior to Tai Ming’s deposition was never produced and the terms of the oral month-to-month agreement it had with Pescatore were never explained. Furthermore, Tai Ming failed to submit any evidence that the street sign was not within its 23 property line. As such, Tai Ming also failed to meet its burden for summary judgment. Finally, we submit that plaintiff’s cross motion for spoliation sanctions against Pescatore should have been granted. The plaintiff’s attorney put Pescatore on official notice of the incident 4 days after the accident. Additionally, plaintiff’s attorney’s associate personally informed John Maruffi, Pescatore’s manager about the plaintiff’s accident and told him that the plaintiff had tripped over the wire that was attached to the subject barrel which he admitted Pescatore owned. The wire was critical to establishing that the condition was (1) not open and obvious and that (2) Pescatore either created the hazard or had actual or constructive notice of the condition. Thus, Pescatore’s answer should have been stricken for its willful destruction and/or refusal to produce the wire that plaintiff tripped over. In the event this honorable Court declines to strike Pescatore’s answer, we submit that it should be precluded from contesting the issue of notice. POINT I PESCATORE FAILED TO MEET ITS BURDEN FOR SUMMARY JUDGMENT LANDLORD’S DUTY OF CARE An owner or possessor of land has a duty to maintain his premises in reasonably safe condition under the circumstances 24 (Basso v. Miller, 40 NY2d 233 [1976]; Scurti v. NYC, 40 NY2d 433 [1976]). He is, after all, the one “best able to identify and prevent any harm to others” (Butler v. Rafferty, 100 NY2d 265, 270 [2003]). A landowner’s responsibility is to be measured by the control he has over the property (Ritto v. Goldberg, 27 NY2d 887, 889 [1970]; Roark v. Hunting, 24 NY2d 470 [1969]; Kurek v. Port Chester Hous., 18 NY2d 450 [1966]; DeClara v. Barber SS Lines, 309 NY 620 [1956]). Lease provisions are relevant in determining control (Hecht v. Vanderbilt Assoc., 141 AD2d 696 [2d Dept. 1998]). The terms of the lease will often determine, as between the lessor and tenant, who has the responsibility for maintenance of the premises (see, Maganias v Scott Realty Co., 187 AD2d 417 [2d Dept 1992]), and the lease may be considered by the jury (Baynes v New York, N. H. & H. R. Co., 279 AD 598 [2d Dept 1951]). Where, for example, a lease contains a specific definition of common areas, issues may be raised as to joint responsibility of entities for the maintenance of same (see, Stalter v. Prudential, 220 AD2d 577 [2d Dept. 1995]). REGARDING NOTICE A plaintiff in a trip and fall case must prove at trial that the defendant caused or created the dangerous condition which caused the accident or had actual or constructive notice 25 of the hazard and failed to remedy it within a reasonable time (see, Mei Xiao Guo v. Quong Big Realty Corp., 81 AD3d 610, 610– 611 [2d Dept. 2011]; Melnikov v. 249 Brighton Corp., 72 AD3d 760 [2d Dept.2010]; Mercer v. NYC, 88 NY2d 955-6 [1996]; Madrid v. NYC, 42 NY2d 1039 [1977]; Putnam v. Stout, 38 NY2d 607, 612 [1976]; Lewis v. MTA, 99 AD2d 246, 249 [1st Dept. 1984], affd. 64 NY2d 670 [1984]; Birthwright v. Mid-City, 268 AD2d 401 [2d Dept. 2001]; Campbell v. A&P, 257 AD2d 642 [2d Dept. 1999]). Constructive notice is present where a condition is visible and apparent and has existed a sufficient length of time before the accident to have been discovered and ameliorated had defendant exercised reasonable care (see, Gordon v. American Museum, 67 NY2d 836-7 [1986]; Negri v. Stop n Shop, 65 NY2d 625- 6 [1985]; Golding v. Powell & Dempsey, 237 AD2d 510 [2d Dept. 1998]). However, where a defendant moves for summary judgment, it has the initial burden of showing that it neither created nor had actual or constructive notice of same long enough to have discovered and remedied it (Dima v. Morrow St., 31 AD3d 697 [2d Dept. 2006], citing Ulu v. ITT, 27 AD3d 554 [2d Dept. 2006], Curtis v. Dayton Beach Park, 23 AD3d 511 [2d Dept. 2005]). It may not do this by pointing to “gaps in the plaintiff’s proof” (Pearson v. Parkside, 27 AD3d 539 [2d Dept. 2006]; Mondello v. 26 DiStefano, 16 AD3d 637-8 [2d Dept. 2005]; Peskin v. NYCTA, 304 AD2d 634 [2d Dept. 2003]; Dalton v. ETS, 294 AD2d 462-3 [2d Dept. 2002]; Pace v. IBM, 248 AD2d 690-1 [2d Dept. 1998]; see generally Larkin Trucking v. Lisbon Tire Mart, 185 AD2d 614-5 [4th Dept. 1992]; Rothbard v. Colgate Univ., 235 AD2d 675 [3d Dept. 1997]). Nor is it sufficient for defense counsel to assert that plaintiff has failed to meet one or another requirement to establish liability (Kucera v. Waldbaums, 304 AD2d 531 [2d Dept. 2003]). PESCATORE FAILED TO MEET ITS BURDEN THAT IT DID NOT CREATE THE DANGEROUS CONDITION Here, in order to be entitled to summary judgment dismissing the complaint, Pescatore was required to establish prima facie that it did not cause or create the condition that allegedly caused plaintiff's fall (see, Corprew v. City of New York, 106 AD3d 524 [1st Dept. 2013], citing, Garcia v. City of New York, 99 AD3d 491 [1st Dept. 2012]; Shechter v. City of New York, 17 AD3d 124, 125 [1st Dept. 2005]; Field v. City of New York, 302 AD2d 223 [1st Dept. 2003]). As a result of Pescatore’s failure to make this showing, the burden does not shift to plaintiff to raise a triable issue of fact with respect to its negligence (see, Giuffrida v. Metro North Commuter RR Co., 279 AD2d 403, 404 [1st Dept. 2001]). Pescatore’s “failure to make such an initial showing requires the denial of the motion 27 regardless of the sufficiency of the opposing papers” (Corprew v. City of New York at 525, citing, Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). We believe Pescatore failed to meet its initial burden on the motion. A party moving for summary judgment has the burden of establishing its entitlement to summary judgment as a matter of law in the first instance. A defendant must refute the plaintiff's proof and establish that it engaged in good and accepted practices; only then does the burden shift to the plaintiff to produce evidence in admissible form showing the existence of disputed factual issues (see generally, Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v. NY Medical Ctr., 64 NY2d 851 [1985]; Olan v. Farrell Lines Inc., 64 NY2d 1092-3 [1985]). Where the defendant does not establish prima facie entitlement to judgment as a matter of law, the motion must be denied, even where the opposing papers are "worthless" (Trepuk v. Frank, 56 NY2d 779 [1982], revsd. for reasons stated in op. of dissent in AD, 86 AD2d 578-9 [1st Dept. 1982]). “In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its 28 existence” (Lezama v 34-15 Parsons Blvd, LLC, 16 AD3d 560, 560 [2d Dept. 2005]). “A defendant who moves for summary judgment in a [trip]-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” (Joachim v. 1824 Church Ave., Inc., 12 AD3d 409, 410 [2d Dept. 2004]; see, Colt v. Great Atl. & Pac. Tea Co., 209 AD2d 294, 295 [1st Dept. 1994]). We respectfully submit that Pescatore failed to meet its burden that it did not create the dangerous condition which caused plaintiff to trip and fall. Pescatore’s reliance on the self-serving testimony of its manager, Anthony Maruffi does nothing to support its position. Indeed, the record belies Pescatore’s assertion that it was not responsible for the barrel that was tied to the street sign. At his examination before trial Anthony Maruffi identified a barrel which was in the exact location where the barrel was at the time of the plaintiff’s accident. The only difference between the barrel that Maruffi identified in the photo and the one that was tied to the pole on the day in question, was that the barrel in the photo was rectangular and the barrel that was tied to the pole was circular. 29 The plaintiff submitted certified Google Map street view images of Pescatore’s parking lot, which were taken in April 2009, 11 months before the incident (396), depicting the barrel that Anthony Maruffi stated belonged to Pescatore. That barrel was in the same spot that the subject round barrel was in at the time of plaintiff’s accident. Pescatore’s reliance on Anthony Maruffi’s self-serving testimony that it did not own and control the circular barrel which was tied to the street sign should not have been grounds for granting its motion. Indeed, what Pescatore failed to address is the videotaped statement of Anthony Maruffi’s father, John Maruffi, who was the manager of Pescatore at the time in question. John Maruffi stated in no uncertain terms that Pescatore owned the subject barrel that was tied to the street sign. On March 15, 2010, five days after plaintiff’s accident, Allen Yi, plaintiff’s counsel’s associate attorney went to 98- 100 Bayard Street and spoke with John Maruffi. Mr. Yi asked John Maruffi if the subject barrel belonged to Pescatore. Mr. Maruffi stated that Pescatore owned the subject barrel as well as an identical round orange barrel, which was in the street, closer to the garage attendant’s booth (357-358). 30 Mr. Yi video recorded Mr. Pescatore’s statement; a copy of the recording is on a CD appended to the record at page 364, which plaintiff showed to Anthony Maruffi at his deposition. We respectfully submit that the testimony of Anthony Maruffi should not have any bearing on this Court’s determination. His testimony was clearly fabricated and directly contradicted by his father, who was the manager of the parking lot at all relevant times. The evidence clearly shows that Pescatore created the dangerous condition which caused plaintiff’s fall. The proof established that it owned and controlled the subject barrel. Moreover, Pescatore routinely placed barrels in the exact same spot that the subject barrel was in on the night in question during the year preceding the incident. As noted above, the certified Google Map street view images show that the rectangular barrel that Anthony Maruffi stated that Pescatore owned was in the exact spot where the subject round barrel was located on March 10, 2010. Moreover, one of Pescatore’s barrels was also in the exact spot where plaintiff fell when Mr. Yi inspected the site on the night of March 14, 2010 and again, when he returned to the site during the day of March 15, 2010. 31 As John Maruffi admitted that Pescatore owned the barrel at issue, there should be no question on this record that it was Pescatore who tied it to the street sign. This makes sense; while Anthony Maruffi testified that the garage closed at 6:00 p.m. (180) Norman Lau Kee, Tai Ming’s vice president testified that Pescatore usually closed at 8:00 p.m. during the week and would stay open later on Fridays and Saturdays (282). Therefore, it could be inferred that Pescatore tied the barrels to the street sign and to the fence adjacent to the garage attendant’s shack prior to or upon closing the parking lot on the night in question. We respectfully submit that Anthony Maruffi’s testimony that he would never affix or tie the barrels to a stationary object is not only incredible as a matter of law. It is irrelevant since Anthony Maruffi could not recall if he was there that day and did not exclude his father (who was the manager at the time of plaintiff’s accident) from tying wires from barrels to poles. “Although the issue of credibility is ordinarily for the trier of facts, the rule must give way where the testimony on appeal is viewed as incredible as a matter of law” (People v. Quinones, 61 AD2d 765 [1st Dept. 1978]). It is true that Courts should give the party with the burden of production the benefit 32 of every reasonable inference that may be drawn from the evidence. However, “There is, of course, an exception to this rule when a witness' testimony is incredible as a matter of law because it is utterly contrary to physical facts, completely at odds with probabilities or simply impossible to believe.” (5 N.Y.Prac., Evidence in New York State and Federal Courts § 3:4, Robert A. Barker and Vincent C. Alexander 2012, citing Loughlin v. City of New York, 186 AD2d 176 [2d Dep't 1992], appeal denied, 81 NY2d 704 [1993]; People v. Stroman, 83 AD2d 370, 372 [1st Dept. 1981]; Tosto v. Marra Bros., 275 AD 686 [2d Dept. 1949], judgment aff'd, 299 NY 700 [1949]). For testimony to be characterized as incredible as a matter of law the testimony must be “manifestly untrue, physically impossible or contrary to human experience” (People v. Toland, 2 AD3d 1053, 1055 [3d Dept. 2003], citing People v Young, 296 AD2d 588, 592 [3d Dept. 2002], lve denied 99 NY2d 536, 538, 541 [2002]; see, People v Burns, 281 AD2d 704, 705 [3d Dept. 2001], lve denied 96 NY2d 826 [2001]). Here, Anthony Maruffi’s testimony that Pescatore did not own the circular barrels is directly contradicted by his father’s testimony, which was unhindered by the cloud of litigation. The photographs showing these traffic barrels affixed to the parking attendant’s shack and fence also directly contradicted his 33 testimony. It was also directly contradicted by the non-party witnesses, who both testified that Pescatore used the circular barrels in connection with its parking lot business. The fact that Anthony had nothing to say about his testimony after being confronted with his father’s video taped statements taken merely 5 days after the accident clearly shows that his testimony was contrived and simply unworthy of belief, even in connection with a summary judgment motion. John Maruffi’s statement, the pictures, the Google Streetview™ images from one year prior to the accident, the non-party witness statements and deposition testimony speak for themselves, and no amount of subterfuge, falsehoods and attempts to obfuscate the truth can change this. As previously noted, John Maruffi admitted that Pescatore owned two circular barrels. On the night of March 14, 2010, Mr. Yi went to 98-100 Bayard Street and recorded the position of the two circular barrels that John Maruffi admitted that Pescatore owned the following day. One of the circular barrels was tied to the fence adjacent to the garage attendant’s shack and the other circular barrel was near the street sign. However, the rope and/or wire that the plaintiff, Herman Ho and Joseph Tsang testified to being tied to the subject barrel and that caused plaintiff’s accident was missing from the 34 accident scene. The consequences of Pescatore’s failure to produce the rope and/or wire which was tied to the street sign will be discussed in Point III, infra. Nevertheless, as Pescatore’s manager admitted that Pescatore owned the two round barrels five days after the plaintiff’s accident there is no question that Pescatore controlled those barrels in connection with its operation of the garage. Either Pescatore tied the subject barrel to the street sign during the garage’s working hours or tied it to the street sign after closing the garage to ensure that it remained stationary throughout the night. However, given Anthony Maruffi’s evasive testimony, which directly contracted his father’s videotaped admissions, we have no way of knowing when the subject barrel was tied to the street sign. Nevertheless, despite all of this evidence which exposes the inherent falsity of Anthony Pescatore’s testimony, the essential facts surrounding the ownership, control and placement of the barrels on the day in question are solely within Pescatore’s exclusive knowledge. This factor alone warrants denial of its motion (see, Abrams v. Pecile, 115 AD3D 565 [1st Dept. Mar. 20, 2014][“Summary judgment is not justified where the existence of essential facts depends upon knowledge exclusively within the possession of the moving party and which 35 might well be disclosed by ... examination before trial”(cits.)]; Guimond v. Vill. of Keeseville, 113 AD3d 895 [3d Dept. 2014][“The pertinent facts are entirely outside plaintiffs' knowledge and within the exclusive knowledge of the parties moving for summary judgment—a circumstance in which summary judgment is inappropriate”]). Thus, it would be inappropriate to grant summary judgment to Pescatore since the material facts pertaining to the tying of the barrel to the street sign are within its exclusive knowledge and control (see, Bisulco by Bisulco v. New York City, 186 AD2d 84, 85 [1st Dept. 1992][“Moreover, at this point in the action, it is particularly inappropriate for this court to sua sponte search the record and grant summary judgment on this cause of action since many of the underlying facts are within the exclusive knowledge and control of the defendant who erected and maintained the sign”]). As Pescatore produced a witness who had no knowledge of the events surrounding the day in question, who declined to testify truthfully and because of Pescatore’s refusal to produce the wire that was tied to the barrel and street sign which plaintiff tripped over, Pescatore has attempted to underhandedly destroy plaintiff’s case. We respectfully submit that the trial court 36 erred by permitting Pescatore from profiting from these unsavory tactics. In the absence of direct evidence, plaintiffs are forced to rely solely on circumstantial evidence to oppose Pescatore’s motion for summary judgment (see, Guimond v. Vill. of Keeseville, 113 AD3d at 898 [“In the absence of direct evidence, plaintiffs are forced to rely solely on circumstantial evidence to oppose defendants' summary judgment motion—that is, the inference that, given the claim of each defendant that the other bears responsibility for maintaining the bridge approach, and the dearth of evidence that any other entity has such responsibility or authority, one of them must have performed the repairs that allegedly caused plaintiff's accident”]). While mere speculation is not enough to survive summary judgment (see, Moorman v. Huntington Hosp., 262 AD2d 290 [2d Dept. 1999]), circumstantial evidence may be sufficient to make out a prima facie negligence claim “if it supports an inference of causation” (Olsen v. K Mart Corp., 04-CV-3648 (JMA), 2005 WL 2989546 [E.D.N.Y. Nov. 8, 2005]). “It has long been recognized that, in circumstantial cases, the possibility that an accident may have been caused by factors other than defendant's negligence does not mandate a conclusion that plaintiff has failed to make out a prima facie case” (id., 37 quoting, Brito v. Manhattan & Bronx Surface Transit Operating Auth., 188 AD2d 253 [1st Dept. 1992]). Circumstantial evidence is sufficient to support the intended inference if it renders such inference more probable than not (see, Ingersoll v. Liberty Bank of Buffalo, 278 NY 1 [1938]; Restatement [2d] of Torts, §433[b], comment b; see generally Mertsaris v. 73rd Corp., 105 AD2d 67 [2d Dept. 1984]). As the Prosser-Keaton hornbook cogently notes: "The plaintiff need not negate entirely the possibility that the defendant's conduct was not a cause, and it is enough to introduce evidence from which reasonable persons may conclude that it was more probable that the event was caused by the defendant than that it was not...If, as a matter of ordinary experience, a particular act or omission might be expected, under the circumstances, to produce a particular result, and that result in fact has followed, the conclusion may be permissible that the causal relation exists" (Prosser & Keaton on Torts, 5th ed., §39). Moreover, that two or more scenarios are theoretically possible does not mean that all are equally probable (see, Gonzalez v. NYCHA, 77 NY2d 663,670 [1991]; Torelli v. NYC, 176 AD2d 119 [1st Dept. 1991], lv. den. 79 NY2d 754 [1992]. A jury can and should utilize its own common sense or what the Court of Appeals has termed "the logic of common experience" in determining 38 that the negligence was more probably than not a proximate cause of plaintiff's injury. “The law does not require that plaintiff's proof positively exclude every other possible cause of the accident but defendant's negligence. Rather, her proof must render those other causes sufficiently remote or technical to enable the jury to reach its verdict based...upon logical inferences to be drawn from the evidence" (Schneider v. Kings Hwy. Hospital Center, 67 NY2d 743, 735 [1986]. Here, the evidence establishes a strong circumstantial link between the hazardous condition that was created by tying the wire to the street sign and traffic barrel and Pescatore’s operation of the parking lot. Five days after the incident John Maruffi admitted that Pescatore owned and controlled all the two circular traffic barrels that were on the premises, including the one that was involved in plaintiff’s accident. “The circumstantial evidence provides a nonspeculative basis for plaintiff's version of the accident” (DiVetri v. ABM Janitorial Serv., Inc., 119 AD3d 486, 487 [1st Dept. 2014], citing, Healy v. ARP Cable, Inc., 299 AD2d 152, 154–155 [1st Dept.2002]). Thus, it stands to reason that just as Pescatore admittedly tied the orange barrel to the fence behind the attendant’s shack (as depicted in the pictures and conceded by Anthony Maruffi at his deposition), and tied their “park” sign to the rectangular 39 barrel with the same material, Pescatore tied the barrel at issue to the street sign. Pescatore was the only entity which would have gone through the trouble of tying the barrel to the street sign. It owned the orange barrel and it was an integral part of its operation. Therefore, it is logical to infer that it affixed the subject barrel to the street sign so that it was stabilized and not tip over due to strong wind and inclement weather conditions. Based upon the foregoing, it is reasonable to infer that Pescatore created the dangerous trap like condition (see, Palumbo v. Innovation Communication Concepts, 251 AD2d 246 [1st Dept. 1998] [Where defendant's contract called for installation of long wires, and it could be inferred that its employees laid down the wire over which plaintiff tripped or had notice of same, a jury question existed on affirmative creation). In light of the foregoing, there are material issues of fact and the motion should be denied, even assuming this Court believes Pescatore met their prima facie burden (see, Gamer v. Ross, 49 AD3d 598, 600 [2d Dept. 2008][“In seeking summary judgment, the defendants asserted that the plaintiffs could not have succeeded in the underlying actions because the wires and traffic debris over which the infant plaintiff allegedly tripped were open and obvious conditions that were not inherently 40 dangerous. On the facts presented, however, the defendants failed to establish their prima facie entitlement to judgment as a matter of law on that ground”, citing Cupo v. Karfunkel, 1 AD3d 48 [2d Dept. 2003]). In addition to failing to meet its burden that it did not create the hazardous condition that caused plaintiff to trip and fall, we respectfully submit that Pescatore failed to meet its burden that it did not have constructive notice of said condition. Having thus failed to establish its lack of notice of the hazardous condition Pescatore’s motion must be denied regardless of the sufficiency of the opposition papers (Alvarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853, supra). PESCATORE FAILED TO MEET ITS BURDEN THAT IT DID NOT HAVE CONSTRUCTIVE NOTICE OF SAID CONDITION Pescatore also moved for summary judgment on the ground that it lacked actual or constructive notice of the dangerous condition prior to plaintiff’s accident. We respectfully submit that this contention is also without merit as it failed to meet its initial burden that it did not have actual or constructive notice of the dangerous condition before plaintiff’s accident. “To meet its initial burden on the issue of ... constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected 41 relative to the time when the plaintiff fell” (Amendola v. City of New York, 89 AD3d 775 [2d Dept. 2011], quoting, Birnbaum v. New York Racing Assn., Inc., 57 AD3d 598, 598–599 [2d Dept. 2008]; see Mei Xiao Guo v. Quong Big Realty Corp., 81 AD3d 610 [2d Dept. 2011]). Where the defendant does not establish prima facie entitlement to judgment as a matter of law, the motion must be denied, even where the opposing papers are "worthless" (Trepuk v. Frank, 56 NY2d 779 [1982], revsd. for reasons stated in op. of dissent in 86 AD2d 578-9 [1st Dept. 1982]). A defendant is required to "see what he should have seen" pursuant to the doctrine of law articulated by the Court of Appeals in Weigand v. United Traction Co., 221 NY 39 [1917] (see generally Lolik v. Big V Supermarkets, 210 AD2d 703 [3d Dept. 1994]; Milka v. Hernandez, 187 AD2d 1031 [4th Dept. 1992]; Weiser v. Dalvo, 184 AD2d 935 [3d Dept. 1992]; Levitt v. County of Suffolk, 166 AD2d 421 [2d Dept. 1990]; Safran v. Amato, 155 AD2d 653 [2d Dept. 1989]; Sappleton v. Metropolitan Suburban Bus Authority, 140 AD2d 684 [2d Dept. 1988]; Lester v. Jolicofer, 120 AD2d 574 [2d Dept. 1986]; Kiernan v. Edwards, 97 AD2d 750 [2d Dept. 1983], app. dism. 62 NY2d 617 [1984]; Abrams v. Gerold, 37 AD2d 391 [1st Dept. 1971]; Vella v. Seacoast Towers A, 32 AD2d 813 [2d Dept. 1969]; Morell v. Peekskill Ranch Inc., 104 AD2d 492 [2d Dept. 1984]; see also Bolta v. Lohan, 242 AD2d 42 356 [2d Dept. 1997]; Jackson v. NYCTA, 227 AD2d 181 [1st Dept. 1996]). A defendant may be liable for the "failure to use reasonable care to discover and correct a condition which [he] ought to have found" (Rogers v. Dorchester Assoc., 32 NY2d 553, 559 [1973]; see also Tashjian v. Strong & Assoc., 225 AD2d 907-8 [3d Dept. 1996]). In Colt v. A&P, supra, 209 AD2d at 294-296, plaintiff fell on vegetable debris in the aisle of a supermarket. Defendant moved for summary judgment asserting that plaintiff could not establish a prima facie case at trial, and did not attempt to show due care in the maintenance of its premises. This Court retorted: Thus, it was not plaintiff's burden in opposing the motion for summary judgment to demonstrate, as defendant urges, that the supermarket had actual or constructive notice of the unsafe condition. Rather, it was the responsibility of defendant to establish the absence of notice as a matter of law, since plaintiff submitted proof that she slipped and fell on some sort of vegetable debris...and that the floor in the produce lane was commonly littered, a reasonable inference can be drawn that defendant may not have maintained the aisle in an adequately clean and safe condition, and that the store could be charged with constructive, if not actual, notice of the problem. In the case at bar Pescatore was required in moving for summary judgment to establish that it lacked actual or constructive notice of the hazardous condition, which it failed to do. Anthony Maruffi testified that that he had no knowledge of the incident or occurrence or the managerial aspect of the parking lot. He further could not even recall whether he was 43 working on Saturday, March 10, 2010 (180). Nor did he or could he explain the exact same rope/wire affixing a “park” sign to another barrel he admits belongs to the lot or how another round barrel became affixed to the lots fence also using the same rope/wire that affixed the barrel in question to the street sign at the edge of their lot. We respectfully submit that Pescatore failed to establish as a matter of law that it did not have actual or constructive notice of the dangerous trap like condition which caused plaintiff to trip and fall. There is absolutely no evidence as to when this area was last inspected prior to the plaintiff’s accident. In Blake v. City of Albany, 48 NY2d 875, 877 [1979], the Court of Appeals stated: "A negligent failure to discover a condition that should have been discovered can be no less a breach of due care than a failure to respond to actual notice”. Here, Pescatore failed to submit evidence as to who was working at the lot on the day in question and failed to submit any evidence as to when anyone inspected and observed the area in question at any time prior to the accident. Thus, Pescatore “failed to meet its prima facie burden of establishing its entitlement to judgment as a matter of law and, therefore...its motion for summary judgment dismissing the complaint” should be denied (Amendola v. City of New York, 89 AD3d at 776). 44 As there is a question of fact as to whether this defendant exercised reasonable case to remedy the hazardous condition we respectfully submit that Pescatore’s motion for summary judgment should be denied (see, O'Rourke v. Castagnola, 246 AD 765 [2d Dept. 1935][matter remitted for trial where “plaintiff...tripped and fell over a barrier consisting of low wooden stakes, connected by a wire, alleged to have been unlawfully maintained by defendants in a public street]). POINT II: TAI MING’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED We acknowledge that an out of possession landlord who retains no control at all over the accident site, and is not contractually obligated to maintain or repair it, is not normally liable for injuries therein. However, it has been held that the reservation of a right of re-entry, inspection and/or repair is sufficient to impose liability on an out of possession landowner for injuries caused by a defective condition, though only if the defect is structural and violates a specific ordinance (Bouima v. Dacomi Inc., 36 AD3d 739 [2d Dept. 2007]; see, Guzman v. Haven Plaza, 69 NY2d 559, 566 [1987]; Lowe- Barrett v. NYC, 28 AD3d 721-2 [2d Dept. 2006]; Seney v. Key Assoc., 15 AD3d 383-4 [2d Dept. 2005]; Dalzell v. McDonalds, 220 AD2d 638 [2d Dept. 1995]; Gavallas v. HIP, 2006 NY AD LEXIS 45 15226 [2d Dept. 2006]; Couluris v. Harbor Boat, 31 AD3d 686 [2d Dept. 2006]; Ingargiola v. Waheguru Mgmt., 5 AD3d 732-3 [2d Dept. 2004]; Thompson v. PA, 305 AD2d 581 [2d Dept. 2003]; Dominguez v. Food City, 303 AD2d 618 [2d Dept. 2003]).] Actual notice is established where a party is actually aware of a condition; constructive notice is established where same is “visible and apparent” and exists “for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” (Gordon v. American Museum, 67 NY2d 836-7 [1986]; Negri v. Stop n Shop, 65 NY2d 625-6 [1985]). Where it is apparent that the condition arose over time, the issue of constructive notice is one for the jury (Taylor v. NYCTA, 48 NY2d 903 [1979]; Blake v. City of Albany, supra; Batton v. Elghanayan, 43 NY2d 898-900 [1978]; see also, Ferlito v. Great South Bay, 140 AD2d 408 [2d Dept. 1988]). This is true with regard to stairway defects (Mieles v. NYCHA, 280 AD2d 528 [2d Dept. 2001]; Hecker v. NYCHA, 245 AD2d 131 [1st Dept. 1997]). Two or more conditions can combine to create a defect which causes an accident; in that situation, 100% liability can be imposed upon a defendant who has control with regard to only one condition. See, Patane v. NYC, 284 AD2d 513 [2d Dept. 2001] (Badly maintained sidewalk covered with ice); Morales v. NYC, 46 270 AD2d 239 [2d Dept. 2000] (Pooling of water in raised sidewalk which caused formation of ice). In addition, even where all control and maintenance are delegated to a third party, the landowner retains certain specific non-delegable duties, and failure to comply with them can trigger the imposition of liability. One of these involves explicitly or implicitly inviting members of the public onto his land (see, Harrington v. 615 West 4th, 2 NY2d 476 [1957]; Beck v. Carter, 68 NY 283, 292 [1877]; Backiel v. Citibank, 299 AD2d 504 [2d Dept. 2002]; Thomassen v. J&K Diner Inc., 152 AD2d 421 [2d Dept. 1989], app. dismd. 76 NY2d 771 [1990], rearg. den. 76 NY2d 889 [1990]). The owner of property may be absolved of the duty to maintain the abutting highway, street, or sidewalk by nothing less than an alienation of the entire property, either permanently, as by deed, or temporarily, as by lease (65 N.Y. Jur. 2d Highways, Streets, and Bridges § 389, citing Appel v. Muller, 262 NY 278 [1933]; Gildea v. Harris Fine Realty & Traffic Co., 249 AD 775 [2d Dep't 1936]). Tai Ming’s unsubstantiated assertion that the street sign was not on its property rings hollow. Indeed, “[i]t is not incumbent upon an injured party, however, to prove affirmatively that the owner of the abutting property had not in fact, at the time of 47 the accident, divested itself of possession and control of the entire property” (id, citing, Fochtman v. Gilman, 9 AD2d 904 [2d Dep't 1959]). “Rather, once ownership of the property is established, the burden is on the owner to show that he or she had parted so completely with possession and control of the property that he or she was unable to perform his or her duty of care toward travelers upon the public way” (id). Tai Ming’s contention that Pescatore was responsible for maintaining the premises by way of an oral lease is also without merit. It offered no testimony or other evidence as to whether this oral agreement included a right to re-enter and a duty to repair. Thus, Tai Ming failed to meet its burden for summary judgment (see, Sanchez v. Irun, 83 AD3d 611, 612 [1st Dept. 2011][“Defendants assert only that the tenant of the basement apartment controlled the interior stairway by reason of an oral lease. However, defendants offer no testimony or other evidence of whether this oral agreement included a right to re-enter and a duty to repair”]; Ford v. Weishaus, 86 AD3d 421, 422 [1st Dept, 2011][“Defendant failed to establish her prima facie entitlement to judgment as a matter of law, and there exists a triable issue as to whether a subsequent written agreement altered defendant's contractual obligations to repair and maintain the building”]). 48 In addition, there is a question of fact as to whether Tai Ming had notice of the dangerous condition. Norman Lau Kee, Tai Ming’s vice president testified that he had been parking his car at the subject parking lot “Twice a week on average” for the last 20 years (278, 289). There are questions of fact as to whether Mr. Kee observed the defective condition prior to the accident and took no action to remedy it. In Vasquez v. RVA, 238 AD2d 407 [2d Dept. 1997] and De Los Angeles v. 397 Bway, 19 AD3d 574 [2d Dept. 2005], the Appellate Division, Second Department held that where a principal or one professionally associated with different related companies had an office at the premises, those entities could not disclaim notice based on the fact that he was acting in a specific capacity for a specific entity, as notice is to be determined based on a holistic view of the evidence (see, Hayes v. South Shore Cruise Lines, 23 AD3d 530 [2d Dept. 2005]). Under these circumstances, we believe there is a triable issue regarding Tai Ming’s notice of the traffic barrel’s placement and whether it observed or could have observed the dangerous condition prior to the plaintiff’s accident. Indeed, under Weigand v. United Traction, 221 NY 39, 42 [1917], Tai Ming was obligated to see what was there to be seen by the proper use of its senses (see generally, Lolik v. Big V Supermarkets, 210 49 AD2d 703 [3d Dept. 1994]; Milka v. Hernandez, 187 AD2d 1031 [4th Dept. 1992]; Weiser v. Dalvo, supra; Levitt v. County of Suffolk, supra; Safran v. Amato, supra; Sappleton supra; Lester v. Jolicofer, supra; Kiernan supra; Abrams v. Gerold, supra; Vella supra; Morell, supra; see also, Bolta v. Lohan, supra; Jackson v. NYCTA, supra. A defendant, of course, may be liable for the "failure to use reasonable care to discover and correct a condition which [he] ought to have found" (Rogers v. Dorchester Assoc., 32 NY2d 553,559 [1973]; see also, Tashjian v. Strong & Assoc., supra). In Blake v. City of Albany, 48 NY2d 875,877 [1979], the Court of Appeals stated: "A negligent failure to discover a condition that should have been discovered can be no less a breach of due care than a failure to respond to actual notice" (see also, Yakkey v. Merrick Shopping Assoc., 258 AD2d 579 [2d Dept. 1999]). In this regard, notice can be found even where a condition existed only for minutes. In Rose v. Da Ecib USA, 259 AD2d 258 [1st Dept. 1999], this Court, in reversing the trial court, held that an issue of fact was presented where plaintiff fell on a greasy spot in a restaurant which was present for at least 15 minutes and defendant's employees were present. Indeed, appellate courts have repeatedly held that the existence of a hazardous condition for only minutes provides a predicate for a finding of 50 constructive notice (see, Negri v. Stop & Shop Inc., supra (15-50 minutes); Gordon v. Waldbaums Inc., 231 AD2d 673 [2d Dept. 1996] (30-35 minutes); Cantanzaro v. King Cullen Grocery Co. Inc., 194 AD2d 584 [2d Dept. 1993] (30 minutes); Huth v. Allied Maint. Corp., 143 AD2d 634 [2d Dept. 1988] (20-30 minutes); Restey v. Victory Markets, 127 AD2d 987 [4th Dept. 1987] (10-15 minutes); Cameron v. Bohack Co., 27 AD2d 362 [2d Dept. 1967] (15 minutes); Quinn v. K-Mart Corp., 22 AD2d 988 [4th Dept. 1996]; Faniel v. Marriott Corp., 204 AD2d 191 [1st Dept. 1994]). It must be noted that Mr. Kee’s testimony was incredible. Despite the fact that he leased the parking lot to Pescatore for 40 years and had parked his car at the lot several times a week for the past 20 years, he claimed that he had never seen any traffic barrels at the parking lot at any time before he was served with process in this case (281). This testimony is simply incredible as the certified Google Map Street View photos show that the barrels were located at the premises at least 11 months prior to the accident and John Maruffi admitted that Pescatore owned the barrels prior to the incident. Accordingly, Tai Ming’s negligence is plainly a triable issue of fact. 51 CONCLUSION Based upon the foregoing, it is respectfully submitted that the order should be reversed. Respectfully submitted, WADE T. MOPRIS, Esq. Attorney for Plaintiff-Appellant By______________________________ Kenneth J. Gorman, Esq. 225 Broadway, Suite 307 New York, N.Y. 10007 212-267-0033 52 CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR § 670.10.3(f) that the foregoing brief was prepared on a computer. Type: A monospaced typeface used as follows: Name of typeface: Courier Point size: 12 Line Spacing: Double Word Count: The total number in the brief, inclusive of point headings and exclusive of pages containing the table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum containing statues, rules, regulations, etc. is 11,509 Dated: New York, New York February 22, 2016 ____________________________________ Kenneth J. Gorman, Appellate Counsel for Plaintiff-Appellant ✓“"I JUJI t