Dolores Parietti et al., Appellants,v.Wal-Mart Stores, Inc. et al., Respondents, et al., Defendant.BriefN.Y.Sep 6, 2017New York Supreme Court APPELLATE DIVISION SECOND DEPARTMENT DOLORES PARIETTI and ROBERT PARIETTI, Plaintiffs-Respondents, against WAL-MART STORES, INC. and WAL-MART STORES EAST, LP, Defendants-Appellants, and MAPLEWOOD ICE CO., INC., Defendant. >> >> BRIEF FOR PLAINTIFFS-RESPONDENTS JUSTIN B. PERRI PLLC 28 South Marion Place Rockville Centre, New York 11570 516-500-2430 and MICHAEL S. LANGELLA PC 888 Veterans Memorial Highway, Suite 410 Hauppauge, New York 11788 631-285-7500 Attorneys for Plaintiffs-Respondents Suffolk County Clerk’s Index No. 26562/11 Docket No. 2014-11857 To Be Argued By: Justin B. Perri Time Requested: 5 Minutes Of Counsel: Justin B. Perri i TABLE OF CONTENTS PAGE Preliminary Statement ................................................................................................ 1 Counterstatement of Questions Presented ................................................................. 2 Counterstatement of Facts .......................................................................................... 3 Argument.................................................................................................................... 5 I. Wal-Mart failed to affirmatively establish, prima facie, that it did not have notice of the alleged hazardous condition ....................................................... 5 A. The movant’s burden. ............................................................................ 5 B. As determined by the lower court, the parties presented evidence upon which a jury could reasonably infer that Wal- Mart had actual or constructive notice of a defective condition. ........11 C. An issue of fact remains as to whether Wal-Mart had notice of a recurring condition. .............................................................................14 II. Video evidence is only dispositive against the weight of contradictory testimony when competing versions of events are mutually exclusive ........15 III. Evidence otherwise excludable at trial may be considered in opposition to a motion for summary judgment ......................................................................17 IV. Wal-Mart and its counsel should be sanctioned for filing this frivolous appeal .............................................................................................................21 1 PRELIMINARY STATEMENT Wal-Mart Stores East, LP i/s/h/a Wal-Mart Stores, Inc. and Wal-Mart Stores East, LP, (hereinafter “Wal-Mart”) appeals from the lower court’s (Pitts, J.) ruling below that Wal-Mart is not entitled to summary judgment as a matter of law. The court below determined that issues of fact remain; issues that can only be resolved by a finder of fact. Wal-Mart claims that it made its prima facie showing of entitlement to summary judgment, but fails to meet the standard enunciated by this Court. See infra, section I.A. Even if the trial court’s conclusion, that Wal-Mart failed to make its prima facie showing, were incorrect, it would constitute harmless error as Plaintiffs have raised an abundance of issues of fact and contrary testimony to rebut Wal-Mart’s account of what happened on May 28, 2011. See infra, sections I.B. and I.C. Wal-Mart’s perplexing reliance on video footage as the linchpin of its case is emblematic of this misguided appeal. Wal-Mart’s video footage cannot conclusively establish whether or not its sales floor contained a hazardous substance. See infra, section II. Wal-Mart insists that testimony establishing that it was on notice of the hazardous condition was inadmissible hearsay, but Wal- Mart’s own case law on this issue instructs trial courts to consider hearsay unless it is unaccompanied by additional direct or circumstantial evidence of defendant’s negligence. See infra, section III. Finally, Plaintiffs-Respondents beg this Court to 2 compel Wal-Mart to bear Plaintiffs-Respondents’ reasonable costs and fees associated with this meritless appeal. See infra, section IV. COUNTERSTATEMENT OF QUESTIONS PRESENTED 1. Did the Defendant demonstrate its entitlement to summary judgment by presenting the court below with: (1) testimony of three of its employees that was contrary to the testimony of two of its other employees, witnesses, and Plaintiff; (2) video which offered “conclusive proof” that there was no water where Plaintiff slipped and fell; and (3) proof that the ice machine in question was new and that there was no evidence of service calls? The lower court correctly answered “no.” 2. Can video surveillance conclusively establish whether there was or was not water on the floor of the surveilled area and for how long? The lower court correctly answered “no.” 3. Does the presence of warning cones near the site of a slip-and-fall create an issue of fact as to whether the premises owner was on notice of a hazardous condition? The lower court correctly answered “yes.” 3 COUNTERSTATEMENT OF FACTS On May 28, 2011, Plaintiff,1 then a seventy-two year old grandmother,2 shopped with her daughter at the Wal-Mart located in Cobleskill, New York, for approximately an hour and a half and then the two women checked out their groceries.3 Plaintiff left the register aisle to use the ladies’ room while her daughter brought their groceries to her car parked outside.4 On her way back from the ladies’ room, at approximately 2:10 p.m., Plaintiff slipped and fell in a puddle of liquid near Wal-Mart’s ice freezer.5 In between Plaintiff and the freezer, there were orange cones with the words “CAUTION” and “WET FLOOR” with an illustration of a man slipping.6 These cones had been placed near the freezer by Wal-Mart employees—whose regular practice was to place cones near the freezer when the area was wet.7 With Plaintiff still collapsed on the floor, a Wal-Mart employee mopped the area where Plaintiff had slipped.8 The mopping continued for several minutes after Plaintiff was taken off on a stretcher, then another mat 1 All references to the “Plaintiff” in the singular are to Dolores Parietti. 2 R. 73 (references to the Record on Appeal will be cited herein as “R. __”). 3 R. 83–89. 4 R. 88–90. 5 R. 89. 6 R. 650. 7 R. 303 and R. 508 (Wal-Mart’s safety manual instructs “front-end associates” to “place caution cones at entrances and exits to alert customers of potentially wet surfaces”). 8 R. 407a, 650, and 129–30. 4 was placed in the area where Plaintiff fell, and, finally, the orange warning cones were removed from the area.9 After the incident, Wal-Mart shift manager Juan Rivera filed a claim form describing the floor that caused the “SLIP/FALL” as “WET FROM ICE BAGS” and describing the claim as “CUSTOMER SLIPPED ON WATER.”10 Two other Wal-Mart employees, Tanya Gosselink and Becky Lamont, testified that water accumulation near the ice machine was a regular occurrence11 and that water accumulation had been removed that very day, which is why Wal-Mart employees had placed orange cones near the ice freezer.12 A pair of shoppers, Mr. and Mrs. Williams, testified that they had observed that the area was wet before and after Plaintiff’s fall.13 For her part, Plaintiff testified that she was “sitting in a big puddle of water”14 after she fell and that the water was filthy with “black heavy marks,”15 indicating that it had been there for some time. Plaintiff also testified 9 R. 407a. 10 R. 578–79. 11 R. 279–80 (Ms. Gosselink testifying that, prior to being serviced, the ice freezer defrosted on approximately a monthly basis, causing water to build up in front of the freezer, at which time Wal-Mart employees would place a mat and cones near the machine), R. 292–93 (Ms. Gosselink testifying that Wal-Mart employees would load the ice freezer, causing water accumulation on the floor, which would be cleaned and cones would be put in place) and R. 303 (Ms. Gosselink testifying that the cones would remain near the ice machine until the area was “completely dry”). 12 R. 209–11 (Ms. Lamont testifying that the area near the ice freezer was wet and, as a result, the area was wiped and cones were placed near the freezer prior to Plaintiff’s fall). 13 R. 347 at 13–14 (Mrs. Williams testifying that she “saw all this water all over the floor”), R. 350 at 1 (Mrs. Williams testifying that that mat near the ice machine “was soaked”), and R. 393 at 18 (Mr. Williams testifying that Plaintiff “slipped on the water”). 14 R. 128 at 6–7. 15 R. 128 at 18–19. 5 that her pants were wet after she fell16 and that a Wal-Mart employee informed her that the ice machine had been leaking prior to her fall.17 ARGUMENT I. WAL-MART FAILED TO AFFIRMATIVELY ESTABLISH, PRIMA FACIE, THAT IT DID NOT HAVE NOTICE OF THE ALLEGED HAZARDOUS CONDITION A. The movant’s burden Summary judgment is a drastic remedy that places a heavy burden on the movant, who must demonstrate that there are no material and triable issues of fact for a jury to resolve. Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141 (1974); Kolivas v. Kirchoff, 14 A.D.3d 493, 787 N.Y.S.2d 392 (2d Dep’t 2005) (“Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it ‘should only be employed when there is no doubt as to the absence of triable issues’”). All of the evidence submitted on a motion for summary judgment is construed in the light most favorable to the opponent of the motion. Branham v. Loews Orpheum Cinemas, Inc., 8 N.Y.3d 931, 834 N.Y.S.2d 503 (2007); Petersel v. Good Sam. Hosp. of Suffern, 99 A.D.3d 880, 880–81 (2d Dep’t 2012) (“affording the plaintiff the benefit of every reasonable inference that can be drawn from the testimony, the defendant failed to establish, prima facie, that it did not have constructive notice of the allegedly hazardous condition”). This Court 16 R. 4. 17 R. 126. 6 has held that summary judgment should not be granted where “conflicting inferences may be drawn from the evidence, or where there are issues of credibility” Lacagnino v. Gonzalez, 306 A.D.2d 250, 760 N.Y.S.2d 533 (2d Dep’t 2003) (citations and quotations omitted) or where circumstantial evidence presents “sufficient facts from which the negligence of the defendant and the causation of the accident by that negligence can be reasonably inferred.” Bradish v. Tank Tech Corp., 216 A.D.2d 505, 506, 628 N.Y.S.2d 807 (2d Dep’t 1995). To satisfy its initial burden on a summary judgment motion, a movant in a slip-and-fall case must affirmatively establish that it maintained its premises in a reasonably safe condition. Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564 (1976); Freidah v. Hamlet Golf & Country Club, 272 A.D.2d 572, 708 N.Y.S.2d 160 (2d Dep’t 2000). In order to accomplish this, thereby shifting the burden back to plaintiff, a defendant cannot simply point out gaps in plaintiff’s case; defendant instead must first affirmatively establish that its employees did not create the hazardous condition. See Amendola v. City of New York, 89 A.D.3d 775, 932 N.Y.S.2d 172 (2d Dep’t 2011). Second, defendant must demonstrate that it did not have actual or constructive notice of the hazardous condition, generally by presenting evidence establishing when the area was last cleaned and inspected prior to the accident. See Johnson v Culinary Inst. of Am., 95 A.D.3d 1077, 944 N.Y.S.2d 307 (2d Dep’t 2012); Martinez v. Khaimov, 74 A.D.3d 1031, 1033, 906 7 N.Y.S.2d 274 (2d Dep’t 2010). A defendant does not meet its burden by showing that a store was cleaned daily, that employees were responsible to clean on an as- needed basis, and that a manager scanned the aisles on a regular basis. The moving defendant must provide evidence as to when the specific area in question was last cleaned or inspected relative to the time plaintiff fell. See Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598–99, 869 N.Y.S.2d 222 (2d Dep’t 2008). Further, references to general daily cleaning practices, without providing any evidence regarding particularized or specific inspection or cleaning procedure in the area of the plaintiff’s fall prior to the accident does not constitute prima facie evidence of lack of notice of the hazardous condition. See Schiano v. Mijul, Inc., 79 A.D.3d 726, 912 N.Y.S.2d 134, 135–36 (2d Dep’t 2010). Wal-Mart argues that three of its employees walked past the site and did not notice the hazard, but the testimony of these employees establishes that each of them were merely passing by, not proactively engaged in an inspection of that particular area. Wal-Mart supervisor Larry Kassman recalled “walking in that exact area a few minutes prior to the fall and [that he] did not encounter any water or moisture on the floor.”18 While Kassman lists one of his many duties as observation of hazardous conditions and he claims that he was “always very aware of floor 18 R. 409. 8 conditions,” he does not claim to have inspected the area in question specifically for hazardous conditions at any time prior to Mrs. Parietti’s fall.19 Wal-Mart customer service representative Loren Ker recalls walking near the area “a number of times that day” and she did not notice the hazard, nor did she slip.20 Finally, Wal-Mart customer service representative Shannon Zbras testified that she walked in the general area of the fall, but she did not see any water on the floor.21 Kassman, Ker, and Zbras also uniformly recall not seeing any water or moisture on the floor after Mrs. Parietti fell,22 which puts their testimony directly at odds with the fact that a Wal-Mart employee spent several minutes mopping the area after the fall.23 These three employees happened to walk past where Mrs. Parietti fell and did not notice a wet floor—this does not satisfy Wal-Mart’s burden of establishing that the specific area was inspected for safety hazards moments before Mrs. Parietti’s fall. See Birnbaum v. New York Racing Ass’n, Inc., 57 A.D.3d 598, 599, 869 N.Y.S.2d 222, 224 (2d Dep’t 2008) (“manager tendered no evidence regarding any particularized or specific inspection or stair-cleaning procedure in the area of the plaintiff's fall on the date of the accident”). Wal-Mart failed to affirmatively establish that it neither created the hazardous condition nor was on notice of the condition. Wal-Mart merely 19 R. 409. 20 R. 411. 21 R. 412. 22 R. 408, 411, and 412. 23 R. 407-a and 650. 9 presented evidence that (1) Plaintiff did not notice the puddle on her way to the bathroom and (2) Wal-Mart’s employees happened to pass by the location of the hazard and similarly did not notice the puddle. Wal-Mart, in its appellate brief, also places a great deal of emphasis on the importance of the video which it considers “conclusive proof” “that there wasn’t any water on the floor,”24 but this argument is a disingenuous mirage. See infra section II. Here, Wal-Mart failed to meet its initial burden of establishing its entitlement to judgment as a matter of law. Plaintiffs’ allegations—having established liability by presenting evidence tending to show that Wal-Mart created the condition or had notice of its existence—only warrant dismissal if Wal-Mart removes all doubt as to the existence of triable issues. See supra, Kolivas, 787 N.Y.S.2d at 393. Wal-Mart’s own appellate brief demonstrates that it failed to meet its summary judgment burden in that it concedes that triable issues of fact exist: On pages 16 and 24 of its appellate brief, Wal-Mart concedes that “the mere presence of a mat and orange cones by the ice machine” was “just as consistent with a finding that defendant’s employees had left the orange cones there after stocking the machine with ice.” 24 See Appellant’s Br. at 8–10. 10 On page 27 of its appellate brief, Wal-Mart concedes that “the water could just as easily have been the product of a substance leaking from another customer’s shopping cart of the result of another customer spilling a drink on the floor.” Finally, Wal-Mart’s claim that its video evidence was strong enough for the trial judge to discount the testimony of numerous witnesses is specious at best. See infra section II. Wal-Mart’s argument is impotent because, inter alia, it turns the summary judgment standard on its head—viewing the evidence in a light most favorable to defendants, placing the burden on the non-movant to affirmatively establish liability, and stripping plaintiffs’ complaint of “every reasonable inference” that is, by law, granted to plaintiffs. See Negri v. Stop and Shop, Inc., 65 N.Y.2d 625 (1985). Wal-Mart erroneously arrives at this result because of its argument that Plaintiffs’ case is premised entirely upon speculation and surmise, asking a jury to connect-the-dots to come to an unfathomable finding of liability against Wal-Mart. As demonstrated below in sections I.B. and I.C., material facts remain unresolved—facts upon which a jury can reasonably infer that Wal-Mart caused and/or had notice of the defective condition; as such, the lower court properly found that the record contained ample evidence for this case to proceed to a jury. 11 B. As determined by the lower court, the parties presented evidence upon which a jury could reasonably infer that Wal-Mart had actual or constructive notice of a defective condition Even if Wal-Mart were to satisfy the exacting standard to meet its prima facie burden, summary judgment would not be granted unless movant’s evidence removed “any doubt as to the existence of [triable] issues” of fact. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957); see also Kolivas, 787 N.Y.S.2d at 393 (“The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist”). A purely circumstantial case would survive summary judgment even after defendant met its prima facie burden if: “[a] jury could rationally infer from this circumstantial evidence that” plaintiff’s pleadings were “‘more likely’ or ‘more reasonable’” than defendant’s version of events. Uttaro v. Staten Island University Hosp., 77 A.D.3d 916, 917, 910 N.Y.S.2d 134 (2d Dep’t 2010); North American Specialty Ins. Co. v. Schwanter, 39 A.D.3d 511, 512, 833 N.Y.S.2d 196 (2d Dep’t 2007). The court below determined that the evidence was sufficient to permit a jury to infer that the dangerous condition was created by or known to Wal-Mart.25 Non-movants need not affirmatively disprove movant’s version of events, they merely need to present evidence tending to show that those defendants either 25 R. 4. 12 created the condition or had knowledge of it. Quiroz v. 176 N. Main, LLC, 2015 WL 445106, at *1 (2d Dep’t Feb. 4, 2015) (“The law does not require that plaintiff’s proof positively exclude every other possible cause of the accident but defendant’s negligence”). If defendants meet their prima facie burden of establishing that they properly maintained and inspected the area, keeping it safe, the burden shifts back to the plaintiff to raise any triable issue of fact. Assuming, arguendo, that Wal-Mart satisfied its prima facie burden, issues of fact remain— issues that cannot be resolved on summary judgment. A jury can reasonably infer, from the evidence presented by Wal-Mart and its employees, that Wal-Mart had notice of the hazardous condition. Wal-Mart’s safety procedures include placing mats to collect water and using caution cones where spills have been cleaned in order to alert customers of the spill area.26 Wal- Mart’s video27 and photographs28 demonstrate that a mat and orange cones were present prior to Plaintiff’s fall. Wal-Mart’s own employee testified that it is Wal- Mart’s policy to leave the orange cones in place until the floor is “totally dry.”29 These particular cones were removed after several minutes of mopping that followed Plaintiff’s fall.30 26 R. 216–17. 27 R. 407a. 28 See, e.g., R. 650. 29 R. 303. 30 R. 407a. 13 In Rosado v. Phipps Houses Svcs., Inc., plaintiff alleged that she slipped and fell in a puddle and that caution cones were located near, but not in the exact area of the liquid. 93 A.D.3d 597, 940 N.Y.S.2d 866 (1st Dep’t 2012). Defendant’s own employee testified that cones were used to alert customers to a slippery condition. Id. On those facts, the First Department determined that “[t]he presence of caution cones here created a triable issue of fact as to prior actual notice of the condition, as defendants’ witness admitted that they would place such caution cones to alert others to a slippery condition.” Id.; see also Geffs v. City of New York, 105 A.D.3d 681, 963 N.Y.S.2d 657 (1st Dep’t 2013) (the presence of warning signs constitute sufficient evidence to raise an issue of fact where defendant’s employee testified that another employee informed him that caution signs were placed on the floor). The court in Rosado, like the court below, determined that the presence of the warning cones was a strong indication of notice which creates an issue of fact for jury resolution. The presence of the orange cones and a mat near the scene of the accident creates, ipso facto, a triable issue of fact that cannot be resolved on summary judgment, but it is by no means Plaintiffs’ only evidence of Wal-Mart’s liability. The court below, allowing the issue of liability to proceed to a jury, recognized that it was presented with copious evidence ranging from, inter alia, Plaintiff’s own testimony that she was sitting in filthy water after her fall, to the testimony of Wal- 14 Mart customers, testimony of Wal-Mart employees, documentary evidence, photographs, and video.31 The court below also properly considered testimony that may otherwise be inadmissible at trial, but is appropriate for the court, on a summary judgment motion, to weigh into its determination on liability as a matter of law. See infra section III. C. An issue of fact remains as to whether Wal-Mart had notice of a recurring condition Absent direct evidence in a slip-and-fall case that defendant had actual or constructive knowledge of a hazardous condition, proof that defendant had knowledge of a recurring condition raises a triable issue of fact upon which 31 1. testimony from Mrs. Parietti indicating that she fell in a puddle of filthy water (see supra, notes 13–15); 2. testimony from Mrs. Williams indicating that the area where Mrs. Parietti had fallen was extremely wet (see supra, note 12); 3. testimony from Mr. Williams corroborating that the area in question was wet (see supra, note 12); 4. an accident report by Manager Rivera stating that the cause was that the floor was “WET FROM ICE BAGS” (R. 578–79); 5. a photograph depicting Mrs. Parietti on the floor next to orange cones with the words “CAUTION” and “WET FLOOR” with an illustration of a man slipping (R. 650); 6. the same photograph showing a Wal-Mart employee in the process of mopping up the wet area where Mrs. Parietti had fallen (R. 650); 7. the Wal-Mart employee who is depicted on the video mopping up the area where Mrs. Parietti slipped spending more than ten minutes mopping the area (R. 407a, 451); 8. after the employee is done mopping, another mat is placed near where Mrs. Parietti slipped and the orange cones are removed from the area (R. 407a); 9. the orange cones in the photograph (R. 650) that were referenced in Wal-Mart’s safety manual which instructs “front-end associates” to “place caution cones at entrances and exits to alert customers of potentially wet surfaces” (R. 508); 10. approximately thirty seconds before Mrs. Parietti’s fall, another female customer can be seen slipping, but not falling, just a few feet away from where Mrs. Parietti fell (R. 407a) (this slip is more evident on Wal-Mart’s footage with the closer view, marked “13.05.51_15.05.59”); and 11. a customer on Wal-Mart’s video (R. 407a) can be seen walking around the area where Mrs. Parietti slips (R. 451). 15 defendant can be charged with constructive notice of each specific occurrence of that condition. See Roussos v. Ciccotto, 15 A.D.3d 641, 792 N.Y.S.2d 501 (2d Dep’t 2005); Erikson v. J.I.B. Realty Corp., 12 A.D.3d 344, 783 N.Y.S.2d 661 (2d Dep’t 2004). Ms. Gosselink’s testimony (see supra, note 10)—that water had accumulated near the ice freezer on prior occasions when the machine defrosted and when the machine was loaded—raises a triable issue of fact as to whether Wal- Mart had knowledge of a recurring hazardous condition near the ice freezer. Wal- Mart’s argument that her testimony constitutes inadmissible hearsay is easily discarded. See infra section III. Wal-Mart questions the credibility of Ms. Gosselink’s testimony, but that too is an issue that requires jury resolution. II. VIDEO EVIDENCE IS ONLY DISPOSITIVE AGAINST THE WEIGHT OF CONTRADICTORY TESTIMONY WHEN COMPETING VERSIONS OF EVENTS ARE MUTUALLY EXCLUSIVE Wal-Mart cites Franco v. Palmer for the proposition that “a court may disregard testimony where that testimony is blatantly inconsistent with video of the actual events.”32 While Wal-Mart is not citing black letter law of New York and relying here only on non-binding authority, the rule makes sense as it was applied in Franco because the testimony in Franco was directly at odds with and incontrovertibly derailed by the video evidence in that case. Wal-Mart tellingly does not present this Court with the facts in Franco. 32 Appellant’s Br. at 3 (citing Franco v. Palmer, 45 Misc.3d 1223(A), Slip Copy, 2014 WL 6780630 (Table) (Sup. Ct. Queens County, Dec. 1, 2014)). 16 Plaintiff in Franco drove her car through a green light at an intersection when her vehicle was hit by defendant’s vehicle. 2014 WL 6780630 at *3. The defendant claimed that the traffic signal was changing from green to yellow, and not yet red, when he drove through the intersection striking plaintiff’s vehicle. Id. The trial court’s review of video footage of the intersection revealed that “the defendant ran the red light without slowing down several seconds after it turned red.” Id. at 4 (emphasis added). The Franco court noted that “[a]lthough the courts may not weigh the credibility of witnesses on a motion for summary judgment, it has been held that the court may disregard testimony where…[b]ased upon a review of the surveillance video, the [party]’s assertion…lacks an evidentiary basis.” Id. Justice Pitts found that the surveillance video in the instant case “does not clearly show whether water was on the floor or how long the condition may have existed.”33 Basically, Justice Pitts found that the surveillance video is of limited use in that it cannot measure moisture levels on the Wal-Mart sales floor. If the video of Plaintiff’s fall is conclusive proof of anything, it is that her right foot slid outwardly across the floor in a gliding motion that would not be possible on a dry floor.34 The critical distinction between the instant case and Franco is that the factual determination in Franco involved a binary choice: the light was steady red 33 R. 4. 34 See R. 407a. 17 or it was yellow and changing to red. The video evidence in Franco clearly demonstrated the former, which proved that the issue of fact raised by the defendant was feigned and could be discarded by the court as a matter of law. The answer to the question of whether there was enough moisture on the floor of the Cobleskill Wal-Mart for a customer to slip is not a binary choice and cannot, with any degree of certainty, be measured or captured by the video cameras used by Wal-Mart to monitor their sales floor for shoplifting. As such, Wal-Mart’s video evidence cannot possibly satisfy its prima facie burden of affirmatively establishing that there was no water on the floor between 1:56 p.m. and 2:10 p.m.35 on May 28, 2011, near the ice machine at the Cobleskill Wal-Mart. Wal-Mart’s argument—that its surveillance video footage reveals a bone-dry floor two minutes and twenty-five seconds prior to Plaintiff’s fall—cannot be taken seriously. III. EVIDENCE OTHERWISE EXCLUDABLE AT TRIAL MAY BE CONSIDERED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT Wal-Mart strenuously objects to the lower court’s consideration of alleged “hearsay testimony” of its own employees—Becky Lamont and Tanya Gosselink36 as well as Plaintiffs’ alleged “unauthenticated” photographs37 and Plaintiff’s second-hand testimony from a Wal-Mart employee who responded to the accident 35 Appellant’s Br. at 21. 36 See Appellant’s Br. at 22, 24. 37 See Appellant’s Br. at 31 (citing Rivera v. GT Acquisition 1 Corp., 72 A.D.3d 525, 899 N.Y.S.2d 46 (1st Dep’t 2010)). 18 and informed Plaintiff that the ice machine was leaking.38 As demonstrated by Wal-Mart’s own case law, these objections—even if the evidence were excludable at trial—are meritless because evidence otherwise excludable at trial may be considered in opposition to a motion for summary judgment as long as it is not the only evidence relied upon by the court. At her deposition, Becky Lamont, a former Wal-mart employee, testified that the area near the ice machine was cleaned by “associates … a little while before the incident.”39 Tanya Gosselink, another former Wal-Mart employee, testified that the ice freezer in question regularly leaked and Wal-Mart employees responded to these leaks by wiping the floor and placing orange warning cones near the machine, which were kept near the machine until the area was completely dry.40 Even if these statements, as well as other evidence deemed “excludable” by Wal-Mart’s counsel, were found to be hearsay, that characterization does not preclude a trial judge from considering the statements along with other evidence of liability. Justice Pitts did not err in considering the testimony of these two former Wal-Mart employees. 38 See Appellant’s Br. at 24. 39 R. 211 at 7–8. 40 R. 279–80 (Ms. Gosselink testifying that, prior to being serviced, the ice freezer defrosted on approximately a monthly basis, causing water to build up in front of the freezer, at which time Wal-Mart employees would place a mat and cones near the machine), R. 292–93 (Ms. Gosselink testifying that Wal-Mart employees would load the ice freezer, causing water accumulation on the floor, which would be cleaned and cones would be put in place) and R. 303 (Ms. Gosselink testifying that the cones would remain near the ice machine until the area was “completely dry”). 19 In Rivera, supra, the First Department found that the trial court below properly disregarded uncertified and unauthenticated documentary evidence submitted in opposition to a summary judgment motion.41 In affirming the lower court’s decision to ignore materials that would be excludable at trial, the Rivera court noted that disregarding such evidence at the summary judgment stage was the exception to the rule: “[w]hile hearsay statements may be used to oppose a summary judgment motion,” there is an exception when the inadmissible evidence is “the only evidence submitted in opposition.” Rivera, 72 A.D.3d at 526; see also People ex rel. Cuomo v. Greenberg, 95 A.D.3d 474, 484, 946 N.Y.S.2d 1, 8 (1st Dep’t 2012) (“in opposition to such motion for summary judgment, a court can consider hearsay evidence”); Fountain v. Ferrara, 118 A.D.3d 416, 987 N.Y.S.2d 55 (1st Dep’t 2014) (hearsay evidence can be considered to defeat a motion for summary judgment where it is supplemented by factual allegations contained in a verified bill of particulars) (citing Johnson v. Peconic Diner, 31 A.D.3d 387, 388, 818 N.Y.S.2d 543 (2d Dep’t 2006)). In Johnson, supra, defendant sought summary judgment on liability by pointing out gaps in plaintiff’s case. 95 A.D.3d at 1078. Plaintiff in Johnson claimed that she slipped and fell on what appeared to be a floor that had been recently mopped. Id. Plaintiff further testified that she spoke with defendant’s 41 See Appellant’s Br. at 31. 20 employee whom plaintiff could only identify as a “Jamaican” person. Id. This unidentified employee, according to plaintiff, had advised her that the floor had been recently mopped. Id. This court, without mentioning the words “inadmissible hearsay,” and considering that the defendant failed to submit any evidence as to when the floor was last cleaned or inspected, afforded plaintiff “every reasonable inference that [could] be drawn from her testimony” and reversed the lower court’s finding of summary judgment for defendant. Id. at 1078–79. The testimony that Wal-Mart finds objectionable constitutes additional evidence that the area where Mrs. Parietti slipped was wet and that Wal-Mart had notice that the floor was wet prior to Mrs. Parietti’s fall. The “objectionable” evidence merely corroborates other evidence that the floor was wet and that Wal- Mart had notice of this hazardous condition—including: 1. testimony from Mrs. Parietti indicating that she fell in a puddle of filthy water (see supra, notes 13–15); 2. testimony from Mrs. Williams indicating that the area where Mrs. Parietti had fallen was extremely wet (see supra, note 12); 3. testimony from Mr. Williams corroborating that the area in question was wet (see supra, note 12); 4. an accident report by Manager Rivera stating that the cause was that the floor was “WET FROM ICE BAGS” (R. 578–79); 5. a photograph depicting Mrs. Parietti on the floor next to orange cones with the words “CAUTION” and “WET FLOOR” with an illustration of a man slipping (R. 650); 6. the same photograph showing a Wal-Mart employee in the process of mopping up the wet area where Mrs. Parietti had fallen (R. 650); 21 7. the Wal-Mart employee who is depicted on the video mopping up the area where Mrs. Parietti slipped spending more than ten minutes mopping the area (R. 407a, 451); 8. after the employee is done mopping, another mat is placed near where Mrs. Parietti slipped and the orange cones are removed from the area (R. 407a); 9. the orange cones in the photograph (R. 650) that were referenced in Wal-Mart’s safety manual which instructs “front- end associates” to “place caution cones at entrances and exits to alert customers of potentially wet surfaces” (R. 508); 10. approximately thirty seconds before Mrs. Parietti’s fall, another female customer can be seen slipping, but not falling, just a few feet away from where Mrs. Parietti fell (R. 407a); and 11. just prior to Mrs. Parietti’s accident, a customer on Wal-Mart’s video (R. 407a) can be seen walking around the area where Mrs. Parietti slips (R. 451). Wal-Mart’s inadmissible hearsay argument is part of its overall scheme in this frivolous appeal to isolate elements of Plaintiffs’ case, viewing every piece of testimony in a vacuum. Justice Pitts was not fooled by this sophistry—he considered all of the testimony in the aggregate and determined that the evidence, if believed by a jury, would support a finding that Wal-Mart was liable for Plaintiffs’ injuries. IV. WAL-MART AND ITS COUNSEL SHOULD BE SANCTIONED FOR FILING THIS FRIVOLOUS APPEAL Under 22 N.Y.C.R.R. § 130-1.1(c), an appeal may be deemed frivolous if the appellate arguments raised are completely without merit in law or fact, the appeal is undertaken primarily to delay or prolong the litigation or to harass or maliciously injure another, or the party or attorney asserts material factual 22 statements that are false. 22 N.Y.C.R.R. § 130-1.1(c). Accord Matter of Wecker v. D’Ambrosio, 6 A.D.3d 452 (2d Dep’t 2004); Levy v. Carol Mgt. Corp., 260 A.D.2d 27 (1st Dep’t 1999). The Court may also consider whether the appellant’s conduct continued after its lack of merit was apparent or should have been apparent, and the circumstances under which the conduct took place, including the time available for investigating the factual or legal basis of the conduct. 22 N.Y.C.R.R. § 130- 1.1(c). Wal-Mart and its counsel must realize that this appeal is meritless. Nevertheless, Wal-Mart and its lawyers have ignored the record, which undermines this appeal, and have cited case law containing precedent that is directly at odds with Wal-Mart’s arguments. This is not merely aggressive advocacy. This is improper, sanctionable conduct. Wal-Mart and its law firm, not Plaintiffs, should bear the cost of Wal-Mart’s “childish plot.” See Lariviere v. Thaw, 2000 WL 33965732, at *3–*4 (N.Y. Sup. Ct. 2000). This is an appropriate case for the Court to exercise its supervisory powers over parties who abuse its procedures, frivolously causing harm both to their adversaries and to the public interest by wasting parties’ money, counsels’ time, and judicial resources. 23 Dated: Rockville Centre, New York June 19, 2015 Respectfully submitted, JUSTIN B. PERRI PLLC _______________________ Justin B. Perri 28 South Marion Place Rockville Centre, NY 11570 Phone: (516) 500-2430 Michael S. Langella Michael S. Langella, P.C. 888 Veterans Memorial Highway Hauppauge, NY 11788 Phone: (631) 285-7500 COUNSEL FOR PLAINTIFFS-RESPONDENTS Dolores Parietti and Robert Parietti CERTIFICATE OF COMPLIANCE Pursuant to 22 NYCRR § 670.10.3(f) The foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 5,601.