Dolores Parietti et al., Appellants,v.Wal-Mart Stores, Inc. et al., Respondents, et al., Defendant.

Brief

N.Y.September 6, 2017

To Be Argued By: PATRICIA A. O'CONNOR, ESQ. Time Requested: 10 Minutes APPELLATE DIVISION-SECOND DEPARTMENT Suffolk County Clerk’s Index No. 26562/11 Echo Appellate Press, Inc. • 30 West Park Avenue • Long Beach, New York 11561 • (516) 432-3601 21184 (REPLACEMENT) BRIEF FOR DEFENDANTS-APPELLANTS 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. App. Div. No. 2014-11857 BRODY, O'CONNOR & O'CONNOR, ESQS. Attorneys for Defendants-Appellants Wal-Mart Stores, Inc. and Wal-Mart Stores East, LP 7 Bayview Avenue Northport, New York 11768 (631) 261-7778 Of Counsel: THOMAS M. O’CONNOR PATRICIA A. O'CONNOR TABLE OF CONTENTS PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT. . . . . . . . . . . . . . . . 15 DECISION BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ARGUMENT POINT I DEFENDANT MADE ITS PRIMA FACIE SHOWING OF ENTITLEMENT TO SUMMARY JUDGMENT . . . . . . . . . . . . . . . 17 POINT II CONTRARY TO THE DETERMINATION OF THE LOWER COURT, THE TESTIMONY OF MARY LOU WILLIAMS AND BECKY LAMONT, WHOLLY UNSUBSTANTIATED BY THE VIDEO EVIDENCE OF THE ACCIDENT SCENE, WAS INSUFFICIENT TO DEFEAT DEFENDANT’S MOTION. . . . . . . . . . . . . . . . . . . . . . . . 20 POINT III THE ALLEGED PRESENCE OF WATER IN THE AREA OF PLAINTIFF’S ACCIDENT WAS NOT A RECURRING CONDITION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 -i- POINT IV THE MERE PRESENCE OF A RUG AND ORANGE CONES IN FRONT OF THE ICE MACHINE DID NOT RAISE A TRIABLE ISSUE OF FACT AS TO WHETHER THE MACHINE WAS LEAKING.. . . . . . . . . . . . . . . . . . . . . . . . . . 26 POINT V THE CLAIM THAT THE WATER IN QUESTION CONTAINED DIRT, FOOTPRINTS, AND SHOPPING CART TRACKS IS NOT SUPPORTED BY THE PLAINTIFF’S SWORN TESTIMONY OR THE AUTHENTICATED PHOTOGRAPHS AND VIDEO OF THE ACCIDENT SCENE. MOREOVER, THE UNAUTHENTICATED PHOTOGRAPHS SUBMITTED IN OPPOSITION TO THE MOTION WERE INADMISSIBLE HEARSAY AND INSUFFICIENT TO DEFEAT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 -ii- PRELIMINARY STATEMENT This brief is submitted on behalf of the defendant-appellant herein, Wal-Mart Stores East, LP i/s/h/a Wal-Mart Stores, Inc. and Wal-Mart Stores East, LP, in support of its appeal from an Order of the Supreme Court (Pitts, J)., dated September 23, 2014, which order denied the defendant’s motion for summary judgment dismissing the plaintiffs’ complaint to recover for personal injuries allegedly suffered in defendant’s store when plaintiff slipped and fell on water near an ice machine containing bags of ice for purchase by customers (3-5).1 QUESTION PRESENTED 1. Did not the defendant make out its prima facie showing of entitlement to summary judgment as a matter of law via (1) the sworn testimony of the ice company and an affidavit from defendant’s invoicing clerk establishing that the ice machine was brand new, never leaked, and never required any service prior to plaintiff’s accident; (2) the affidavits of three former employees in which they averred that there wasn’t any water on the floor only moments prior to plaintiff’s fall; and (3) videotape depicting those three individuals walking past the accident site and the plaintiff falling only two minutes and 25 seconds after the last individual passed the ¹. Unless otherwise indicated, numerals in parentheses refer to the pages of the appellant’s reproduced Record on Appeal. -1- site? The court below incorrectly determined that defendant failed to establish its entitlement to judgment as a matter of law. 2. After the defendant made out its prima facie showing of entitlement to summary judgment as a matter of law, did the plaintiff raise triable issues of fact sufficient to defeat the defendant’s motion by claiming (1) that an unidentified defendant employee made a hearsay statement that the ice machine was leaking; (2) that the water in which the plaintiff fell was a recurring condition caused by a leaking ice machine; (3) that unauthenticated photographs, clearly not taken at the time of plaintiff’s accident and allegedly depicting dirt and scuff marks, were sufficient to draw a conclusion that the water existed for such a length of time that the defendant should have been on notice of that water; (4) that the mat and the orange cones in front of the machine, coupled with the testimony of defendant’s employee that someone told her the floor in front of the machine had been wiped only moments prior to plaintiff’s fall, proved that the machine was leaking notwithstanding the fact that the video of the accident scene did not show anyone wiping the floor in front of the machine; (5) that the testimony of a non-party that there was “all this water all over the floor” defeated summary judgment notwithstanding the fact that her testimony did not comport with the video of the accident scene in any way? The court below never really examined these issues at length, having improperly -2- concluded in the first instance that“Wal-Mart has failed to establish its entitlement to judgment as a matter of law as the evidence raises questions of fact as to whether Wal-Mart had notice of the allegedly defective condition” (4) (citations omitted). STATEMENT OF FACTS The testimony given by the various individuals who were deposed in this matter is summarized below for the Court’s convenience. The Court is forewarned, however, that much of the sworn testimony is simply incorrect as established by both documentary evidence and store surveillance of the subject accident, also discussed below. While it is, of course, well settled that a court should not usually weigh the credibility of witnesses on a motion for summary judgment, it has also been held that a court may disregard testimony where that testimony is blatantly inconsistent with video of the actual events. See, e.g. Franco v. Palmer, 2014 N.Y. Misc. LEXIS 5132; 2014 NY Slip Op 51693(U) (citations omitted). Thus, the testifying individuals who were flat out incorrect regarding their observations on the day in question should have been disregarded by the court below and may be safely disregarded here. A. PLAINTIFF MADE NO OBSERVATIONS OF ANY WATER ON THE FLOOR PRIOR TO HER FALL As is here pertinent, Mrs. Parietti testified that she went to the Cobleskill Wal- Mart on May 28, 2011, Memorial Day weekend, with her daughter, Phyllis Frenger -3- (80, 81, 83). They arrived at approximately 12:30 p.m., shopped for 90 minutes, and checked out at 2:03:41 p.m. (87; 192-A [cash register receipt]). After checking out, Phyllis went to the car and plaintiff went to the ladies’ room, walking in front of the ice machine at issue and making no observations of any water on the floor at this time (90, 94). She exited the ladies’ room, started walking back in the direction from which she had came and went “down” near the store’s ice machine (91). She was unable to state whether she slipped or tripped (93). Plaintiff’s testimony regarding the alleged presence of water on the floor was as follows: Q: Prior to the happening of the accident, did you see any water on the floor? A: No. Q: As you were walking to the ladies’ room from the cashier, did you see any water on the floor? A: No. Q: Prior to the happening of the accident, did you see any cones in the area of the ice machine? A: No. Q: Prior to the happening of the accident, did you see any types of rugs or carpeting in front of the ice machine? -4- A: No. (94). Q: While you were walking to the ladies’ room from the checkouts, did you ever notice any water on the floor? A: No. Q: Did you ever experience any problems walking from the checkout to the ladies’ room? A: No. (121-122). Q: While you were at the scene of the accident, did you then see any cones in the area where the accident occurred? A: No. Q: After the accident happened, but while still at the scene of the accident, did you see a rug or carpeting in front of the ice machine? A: Not that I recall. (108-109). Plaintiff testified that the unidentified WAL-MART employee who responded to the accident told her that the “ice machine is leaking” (126-127). -5- Plaintiff identified five stills of her accident, taken from the defendant’s video surveillance system, as an accurate depiction of the accident scene on the day in question (110-115; 193-197 [five still photographs]). Contrary to her testimony, the photographs depict a mat and three orange cones in front of the subject ice machine at the time of her fall (193-197). B. THE MACHINE AT ISSUE WAS BRAND NEW AND THE RECORD IS DEVOID OF ANY EVIDENCE THAT IT WAS LEAKING ON THE DAY OF PLAINTIFF’S ACCIDENT Maplewood Ice Company, Inc., the purveyor of the ice machine at issue, testified that a brand-new, eight foot model with a capacity of 350 five-pound bags of ice, was placed in the Cobleskill Wal-Mart by Maplewood on or around April 15, 2011 (322-323, 329; 333[April 5, 2011 invoice for purchase of machine]). It replaced a smaller six foot model that was functioning without any issues; the store simply wanted a larger model (322-323, 329). The new machine was shipped from the factory with a plug in the bottom that kept any melting water inside the machine (325). The machine was checked the first week of May to make sure it was running properly (329). It was checked again approximately two weeks later (329). At no time prior to or after plaintiff’s accident of May 28, 2011 was Maplewood ever notified of any problems with the machine nor did it engage in any repairs to the machine (326; 334-337 [Maplewood’s Response to Plaintiff’s Combined Demands -6- for Discovery]). Defendant’s invoice clerk for the Cobleskill Wal-Mart submitted a sworn affidavit on the motion in which she attested that she conducted a search of her business records in November of 2011 and found absolutely no indication that the subject ice machine had ever been serviced and/or repaired (413). C. THREE FORMER EMPLOYEES ATTESTED TO THE LACK OF ANY WATER ON THE DEFENDANT’S FLOOR IMMEDIATELY PRIOR TO PLAINTIFF’S FALL Former Wal-Mart supervisor, Larry Kassman, who passed the site of plaintiff’s accident at 1:56:36 p.m., submitted a sworn affidavit that part of his duties on the day of the accident included looking for “‘slip, trip & fall’ hazards, so [he] was always very aware of floor conditions.” (408-409). He walked in the “exact area” of plaintiff’s fall a “few minutes prior to the fall and . . . did not encounter any water or moisture on the floor” (409). Former Wal-Mart customer service representative, Loren C. Ker, who passed the site of plaintiff’s accident at 1:59:48 p.m. and again at 2:04:22 p.m., averred in her sworn affidavit that she had walked over that same floor area a number of times that day, and did not see any water or moisture on the floor, nor did I slip at all. As part of my duties as a customer service rep, it is my responsibility, along with others, to keep an eye out for spills, slippery conditions, and the like. -7- I offer this statement freely and without compensation. (410-411). Former Wal-Mart customer service representative, Shannon Zbras, who walked back and forth through the area of plaintiff’s fall at 2:02:52 p.m. and 2:02:59 p.m., averred in her sworn affidavit: Just prior to the incident, I had left the customer service desk to check on the lines of customers waiting to check out. I then returned to the customer service desk. During my walk out and back, I walked in the same location as where the woman fell, and I saw no water on the floor area where she later fell . . . At no time before or after the woman fell, did I see any water on the floor. I offer this statement freely and without compensation. (412) D. THE VIDEO OF THE ACCIDENT SCENE IS CONCLUSIVE PROOF OF THE EVENTS IN QUESTION Video clips of the accident scene constitute indisputable evidence of the events of May 31, 2011 (407). They begin at approximately 1:05 p.m. and show the front end of the store and the ice machine located against the wall in that area. Depicted is a floor mat in front of the ice machine and three orange caution cones on the floor at the perimeter of the floor mat. The ice machine is located on an area of tile floor that is tan in color. Approximately three feet from the long end of the floor mat, the tile becomes white in color. An associate is seen sweeping, not mopping, the front -8- end at 1:07:06 p.m. Reference is made to the clip entitled “13.05.51_15.05.59" as it contains a closer view of the accident scene. Dozens and dozens of customers are seen walking in the area of plaintiff’s fall without difficulty prior to her fall. Several former Wal- Mart associates are also seen walking in the area prior to plaintiff’s fall. The time line is as follows: 1:56:36 p.m.: Larry Kossman walks right through the area in question. As noted above, he averred that he did not encounter any water or moisture on the floor at that time. 1:59:48 p.m.: Loren Ker walks through the same area. She attested that she did not see any water or moisture on the floor. 2:02:52 p.m.: Shannon Zbras walks through the area. 2:02:59 p.m.: Shannon Zbras walks through the area again. She saw no water on the floor on either trip. 2:04:22 p.m.: Loren Ker walks through the area again. She did not see any water on the floor. 2:05:16 p.m.: Plaintiff walks from a cash register at the top of the screen towards the bottom left corner of the screen. She walks in the area of the accident without trouble and testified that she made no observations of water at this time. -9- 2:06:47 p.m.: Plaintiff is observed coming back across the same area and falling. She does not fall on or land on the mat in front of the ice machine. (407). The video surveillance coupled with the sworn affidavits of defendant’s three former employees establishes that there wasn’t any water on the floor a mere two minutes and 25 seconds prior to plaintiff’s fall. Thus, defendant made out its prima facie entitlement to summary judgment. E. THE TESTIMONY OF DEFENDANT’S EMPLOYEES DID NOT RAISE A TRIABLE ISSUE OF FACT AS TO NOTICE Becky Lamont, the defendant’s Zone Merchandise Supervisor and a member of its Safety Team, testified that she was unaware of the date that the ice machine at issue had been delivered to the store and unaware of any discussions regarding the machine leaking and/or the area around the machine being wet at any time prior to plaintiff’s accident (215-216, 223-224). Specifically, her testimony was as follows: Q: Do you have knowledge of that area being wet for any reason as a result of the ice being taken out of the machine? A: No. Q: Did you ever have any discussions with anyone prior to the date of this incident about the area near the ice machine being wet? A: No. -10- Q: Do you know if anyone had complained to the ice company or whoever the company was that brought in the machine, that it wasn’t working properly prior to the date of the incident? A: No. (223-224). Ms. Lamont also testified that she responded to the scene of the accident and was advised that employees had wiped the floor in front of the ice machine “a couple of minutes” before the plaintiff’s accident (209-211), an allegation that is belied by the videotape of the accident site that shows that no such wiping a couple of minutes before the plaintiff’s accident ever took place (407). Tanya Gosselink, defendant’s Customer Service Manager, testified that she had no independent recollection of the plaintiff’s accident of May 28, 2011 and, in fact, did not even know whether she had worked that day (272-273). When asked whether she was aware of any water leaking from the ice machine on May 28, 2011, she again reiterated that she did not remember that day at all (277). She believed that the ice machine in the store in 2011 was the same ice machine that had been present in the store since she began working in 2008, an incorrect assumption (301). She was aware of two occasions where the ice machine had leaked because it was undergoing a defrost, but those alleged leaks took place after plaintiff’s accident (285, 301-302). -11- She testified that an individual came to fix the machine approximately a year prior to her deposition; to wit, sometime in April of 2012 (281). Ms. Gosselink was not present in the store on the day that an individual allegedly came to service the machine in April of 2012 and had no real information regarding this alleged service visit (284). Instead, she allegedly learned of this repair visit from some unidentified “cashiers” who told her about it (287). Ms. Gosselink testified that there was always a rug/mat in front of the ice machine and that orange cones were usually put out when ice was being loaded into the machine, an activity she estimated would have taken place three times on this Memorial Day weekend (279, 293). F. THE SWORN TESTIMONY OF THE NON-PARTIES IS BELIED BY THE VIDEO EVIDENCE OF THE ACCIDENT SCENE Mary Lou Williams testified that she was standing on a checkout line with her husband behind her with a shopping cart when she observed “all this water all over the floor” with “no cones stating that it was wet . . . .” (347, 355). She testified that she observed the plaintiff and wanted to warn her of the water, but the plaintiff fell before she could issue a warning (347-348). Later in her deposition, she changed her testimony to state that she took no notice of the plaintiff before her fall (363-364). -12- After a leading question from plaintiff’s counsel as to whether the mat in front of the ice machine was “soaked,” Mrs. Williams responded: “It was soaked. If you walked on it, I mean it was soaked.” (350). She explained that the plaintiff fell onto the mat and was “laying on it,” prompting Mrs. Williams to abandon her husband and her groceries at the checkout line and go to assist the plaintiff (357, 371). When she did so, she claimed, she ended up standing on the mat in order to hold up the plaintiff while they waited for help (357). It was at this point that she allegedly made the determination that the mat was “soaked” and that there weren’t any cones by the mat. In fact, she was rather adamant about it. Q: Did you see warning cones where the mat was? A: No. There was none. (350). Mrs. Williams was shown the five still photographs identified by the plaintiff at her deposition. She identified herself in the photographs as the woman in white standing at the end of a checkout line and putting her wallet back into her purse, but refused to concede that the photographs did not support her version of events (364- 366, 368-371); to wit, that the photographs depicted orange cones. It cannot be stressed strongly enough that the video does not support Mrs. Williams’ dramatic version of events. The video conclusively establishes that -13- plaintiff did not fall onto the mat, that Mrs. Williams did not turn her head toward plaintiff at any time before or immediately after the plaintiff’s fall, that Mrs. Williams did not go to plaintiff’s rescue, and that Mrs. Williams did not go to stand upon the allegedly “soaked” mat in order to hold and comfort the plaintiff. Rather, the video shows other individuals responding to the plaintiff while Mrs. Williams leaves the scene, pushing a shopping cart through an area that she described as “all this water” without incident. For his part, Mr. Williams first testified that the plaintiff did not fall in front of the ice machine, but rather fell in front of the bottled water service area of the store (394). He then testified that she fell in front of the ice machine, but there wasn’t any rug or mat in front of the ice machine at the time she fell, again an allegation unsupported by the video of the accident (395-396). His wife went over to the plaintiff, another allegation unsupported by the video, and he took the shopping cart and went to stand by McDonalds (397-398). When he moved from the register to the area near McDonald’s, he did not travel through any water on the floor (400). He observed nothing more than an approximately “four by four square or something” of water. “Just a little water, you know, out into where that lady slipped . . . Not much there though” (402). Although he shopped in this Wal-Mart just about every week, he had never before observed any water on the floor in the area of plaintiff’s accident -14- (403). DEFENDANT’S MOTION FOR SUMMARY JUDGMENT By papers dated December 16, 2013, the defendant moved for summary judgment (8-21). In support of its motion, defendant submitted, inter alia, the sworn affidavits of its three former associates and the video clips of the accident scene, beginning one hour before the plaintiff’s accident. Defendant argued that its proof established that it was not on notice, actual or constructive, of any water on the floor of its store prior to plaintiff’s accident. It further argued that the alleged statement of the unidentified employee that the machine at issue was “leaking” was inadmissible as hearsay as the plaintiff had failed to ascertain the speaking authority, if any, of that individual. Finally, it contended that there was here no proof of a recurring leak from the brand new ice machine. In opposition, plaintiff claimed that the mere presence of a rug and cones in front of the machine constituted proof of a leaking machine (445). Plaintiff also submitted unauthenticated photographs, clearly not taken at or around the time of plaintiff’s fall, claiming that the scuff marks depicted in same constituted evidence that water existed on the floor for a sufficient length of time for defendant to discover it (447). Plaintiff mistakenly claimed that Tanya Gosselink testified to leaks that occurred one year prior to the accident when, in fact, she testified that the leaks -15- occurred one year prior to her deposition or in April of 2012 (440). And, plaintiff relied on the hearsay statement allegedly made by an unidentified employee that the ice machine was leaking at the time of plaintiff’s fall (450). In reply, the defendant contended that both the statement that the ice machine was leaking and the unauthenticated photographs taken at some time other than plaintiff’s accident constituted inadmissible hearsay (629-633). It argued that there was no evidence whatsoever that the brand new ice machine was leaking and/or that said leaking was a recurring condition (634-635). It contended that the mere presence of a mat and orange cones by the ice machine was entirely insufficient to permit the speculation that the ice machine was leaking - - it was just as consistent with a finding that defendant’s employees had left the orange cones there after stocking the machine with ice (635). DECISION BELOW Citing to the testimony of non-party Mary Lou Williams, characterized by the court as a statement that there was “water all over the floor near the machine,” and the testimony of Becky Lamont that others had advised her that the floor had been wiped clean minutes prior to the plaintiff’s accident, the court below held: “Wal-Mart has failed to establish its entitlement to judgment as a matter of law as the evidence raises questions of fact as to whether Wal-Mart had notice of the allegedly defective condition” (4) (citations omitted). -16- ARGUMENT POINT I DEFENDANT MADE ITS PRIMA FACIE SHOWING OF ENTITLEMENT TO SUMMARY JUDGMENT It is well established that a defendant cannot be held liable for an injury sustained as a result of any alleged dangerous or defective condition upon the defendant’s premises unless plaintiff can show that the defendant had actual or constructive notice of the condition. See generally Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). Here, defendant submitted both video evidence and the sworn affidavits of three of its former employees attesting to the fact that they all passed the site of the accident mere minutes prior to same and no water was on the floor at that time. Since an institutional defendant may make a prima facie showing of its right to summary judgment in a premises liability case based on the absence of notice without the necessity of producing proof that every one of its employees who might conceivably have received notice of the condition at issue had been questioned and had denied receipt of such notice, defendant made out its prima facie entitlement to summary judgment in this matter. Rivas v. 525 Building Co, LLC, 293 AD2d 733, 760 NYS2d 539 (2d Dept 2003); see also Santos v. 786 Flatbush Food Corp, 89 AD3d 828, 932 NYS2d 525 (2d Dept 2011) (defendant meets -17- its initial burden on the issue of notice by offering “some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell”). The Court’s attention is respectfully directed to Warren v. Wal-Mart Stores, Inc., 105 AD3d 732, 963 NYS2d 150 (2d Dept 2013), a matter remarkably similar, albeit not identical, to the matter at bar. In Warren, the plaintiff “slipped and fell on a bleach spill in an aisle of a Walmart store in the Sunrise Mall in Massapequa on October 25, 2008.” Id. at 733, 963 NYS2d at 151. This defendant moved for summary judgment dismissing the complaint insofar as asserted against it, submitting, as it does here, “the affidavit of an employee, along with surveillance footage” on the motion. Id. The trial court denied the motion and, on the appeal, this Court reversed. It stated: In support of its motion, Walmart relied upon, inter alia, the affidavit of an employee, along with surveillance footage, which established that Walmart did not create the allegedly dangerous condition or have actual or constructive notice of the bleach spill prior to the accident. Therefore, Walmart established its prima facie entitlement to judgment as a matter of law (see Knack v. Red Lobster 286, N & D Rests., Inc., 98 AD3d at 473). In opposition, the plaintiff failed to raise a triable issue of fact as to whether Walmart created or had actual or constructive notice of the spill prior to the accident (id. at 474). Id. at 733, 963 NYS2d at 152-153. -18- Here, Wal-Mart made out its prima facie showing of entitlement to summary judgment by the submission of surveillance footage of the accident and three affidavits of former employees establishing that it was not on notice of any water on its floor prior to plaintiff’s accident. The trial court erred in holding that Wal-Mart had failed to establish its entitlement to summary judgment as a matter of law. -19- POINT II CONTRARY TO THE DETERMINATION OF THE LOWER COURT, THE TESTIMONY OF MARY LOU WILLIAMS AND BECKY LAMONT, WHOLLY UNSUBSTANTIATED BY THE VIDEO EVIDENCE OF THE ACCIDENT SCENE, WAS INSUFFICIENT TO DEFEAT DEFENDANT’S MOTION A. THE TESTIMONY OF MARY LOU WILLIAMS WAS NOT CREDIBLE - - EVEN IF CREDITED IT WAS INSUFFICIENT TO DEFEAT DEFENDANT’S MOTION The court below stated that Mary Lou Williams “observed water all over the floor near the machine” while she was standing on the checkout line (4). The court failed to acknowledge that Mrs. Williams never looked up or towards the ice machine at any time while she was on the checkout line (407, 366, 370, 371). And, despite her sworn testimony in which she clearly made herself the hero of the day, Mrs. Williams did not rush to assist the plaintiff or hold plaintiff while she was lying on the floor. Mrs. Williams completed her transaction and left the area, pushing her shopping cart without incident. In short, Mrs. Williams’ testimony should have been disregarded as incompatible with the concrete evidence presented by the video. Even if the court did not disregard Mrs. Williams’ testimony as less than credible, however, it should have analyzed that testimony in conjunction with the time line established by the video surveillance of the accident site and the three sworn -20- affidavits of defendant’s former employees. That evidence established that there wasn’t any water on the floor at 1:56:36 p.m. when Larry Kossman walked right through the area. There wasn’t any water on the floor at 1:59:48 p.m., 2:02:52 p.m., or 2:02:59 p.m. when Loren Ker and Shannon Zbras walked through the area. There wasn’t any water on the floor at 2:04:22 p.m., when Loren Ker returned through the area. The plaintiff made no observations of any water on the floor at 2:05:16 p.m. when she first walked through the area. At best, then, the first time water is allegedly observed on the floor by Mrs. Williams is at almost the same moment that plaintiff falls at 2:06 p.m. Specifically, Mrs. Williams testified that she saw water on the floor and, before she could even remark on same to her husband, the plaintiff went down (347). Under these facts and circumstances, Mrs. Williams’ testimony regarding the presence of water, if it is to be believed at all, does nothing to raise a triable issue of fact as to notice. Had Mrs. Williams placed defendant on immediate notice of the alleged presence of water, defendant would have had an insufficient amount of time to remedy that water prior to plaintiff’s fall. Thus, summary judgment should not have been defeated by Mrs. Williams’ testimony. See Mercer v. City of New York, 88 NY2d 955, 647 NYS2d 159 (1996) (plaintiff failed to meet burden sufficient to defeat motion where no evidence of a reasonable time to correct or warn about existence of dangerous condition was presented); Aquino v. Kuczinski, Vila & -21- Assocs. P.C., 39 AD3d 216, 835 NYS2d 16, 19 (2007) (“notice alone is not enough; the plaintiff must also show that defendant had a sufficient opportunity, within the exercise of reasonable care, to remedy the situation after receiving such notice"). B. THE TESTIMONY OF BECKY LAMONT WAS BELIED BY THE VIDEO EVIDENCE BEFORE THE COURT The court below stated that the area in front of the ice machine was cleaned prior to the plaintiff’s fall and that the orange cones depicted in the video were evidence of that cleaning. As with the testimony of Mrs. Williams, the court failed to take into account the fact that Ms. Lamont’s testimony was belied by the concrete evidence of the video. It also failed to take into account the testimony of Tanya Gosselink that orange cones were customarily placed at the ice machine while the machine was being stocked with bags of ice. Becky Lamont did not testify that she herself observed someone wiping the floor in front of the ice machine clean of water in the moments just prior to the plaintiff’s fall. Instead, in what clearly is inadmissible hearsay, Ms. Lamont testified that she was told that someone had wiped the floor in front of the ice machine just moments prior to the plaintiff’s fall. The video submitted to the court establishes that no such wiping took place, however. It shows that the floor in the front end of the store was swept, not mopped, at 1:07:06 p.m. while the plaintiff’s accident did not -22- happen until 2:06 p.m., nearly an hour later. The video also shows that three orange cones were in place when the video begins, a practice that is supposed to be employed when stocking the machine. The evidence, therefore, is just as consistent with a finding that one of defendant’s employees placed the orange cones at the machine while stocking it with bags of ice and simply failed to remove same when finished as it is with the speculation, unsupported by any other evidence, that the machine was leaking. -23- POINT III THE ALLEGED PRESENCE OF WATER IN THE AREA OF PLAINTIFF’S ACCIDENT WAS NOT A RECURRING CONDITION Plaintiff claimed that the water upon which she slipped was the result of a recurring leak from the store’s ice machine. The evidence on the record before this Court is as follows, however: < The ice machine was brand new and installed in the store on or about April 15, 2011, only 44 days before the plaintiff’s accident. The new machine was shipped from the factory with a plug in the bottom that kept any melting water inside the machine. The machine was examined by the seller during the first and third week of May and found to be operating properly, without any leaks. At no time prior to or after plaintiff’s accident of May 28, 2011 was the seller ever notified of any problems with the machine nor did it engage in any repairs to the machine. < A search of defendant’s business records in November of 2011 revealed no evidence that the subject ice machine had ever been serviced and/or repaired. < Tanya Gosselink testified that she was aware of two occasions where the ice machine in the front of the store leaked, but those alleged leaks were subsequent to plaintiff’s accident and, in any event, Ms. Gosselink’s knowledge was second-hand and constituted inadmissible hearsay. < Plaintiff testified that the unidentified individual who responded to her accident told her that the ice machine was leaking, but that purported statement constituted inadmissible hearsay as well. -24- In sum there is here no evidence whatsoever that this brand new ice machine, an ice machine that was never repaired either before or after plaintiff’s accident, was leaking on the day of plaintiff’s accident. -25- POINT IV THE MERE PRESENCE OF A RUG AND ORANGE CONES IN FRONT OF THE ICE MACHINE DID NOT RAISE A TRIABLE ISSUE OF FACT AS TO WHETHER THE MACHINE WAS LEAKING The mere presence of the rug and the cones in front of the ice machine does not establish that it was leaking on the day in question. Ms. Gosselink testified that there was always a rug/mat in front of the ice machine. And, it would be completely impermissible speculation to allow a jury to infer that the mere presence of the orange cones means that the ice machine was affirmatively leaking since Ms. Gosselink testified that cones are placed there when the machine is being loaded. The videotape of the accident begins at 1:05:51 p.m. It depicts dozens of individuals walking on the mat in front of the ice machine without incident. It also depicts hundreds of individuals walking on the floor in front of the ice machine without incident. In fact, the plaintiff herself walked on the floor in front of the ice machine at 2:05:16 p.m. and made no observation of water on the floor. In sum, there is here a complete dearth of any admissible evidence that the water on the floor was the result of a leaking ice machine and that same existed on the floor for such a length of time that it should have been discovered and remedied. Under these facts and circumstances, the water could just as easily have been the product of a substance -26- leaking from another customer’s shopping cart or the result of another customer spilling a drink on the floor. Since the only evidence established here is just as consistent with a finding that someone had spilled or dripped water on the floor shortly before plaintiff’s fall as it is with a finding that the water existed for such a length of time that it should have been discovered and remedied, the defendant should have been granted summary judgment. Anderson v. Klein’s Foods, Inc., 139 AD2d 904 affd 73 NY2d 835, 537 NYS2d 481 (1988); Dwoskin v. Burger King Corporation, 249 AD2d 358, 671 NYS2d 494 (2d Dept 1998) (defendant entitled to summary judgment where plaintiff slipped and fell on melting ice located 3 to 4 feet away from self service beverage center in defendant’s restaurant because plaintiff submitted no proof, only speculation, that the puddle of water and ice on floor was in fact caused by the ice machine at the beverage counter). -27- POINT V THE CLAIM THAT THE WATER IN QUESTION CONTAINED DIRT, FOOTPRINTS, AND SHOPPING CART TRACKS IS NOT SUPPORTED BY THE PLAINTIFF’S SWORN TESTIMONY OR THE AUTHENTICATED PHOTOGRAPHS AND VIDEO OF THE ACCIDENT SCENE. MOREOVER, THE U N A U T H E N T I C A T E D P H O T O G R A P H S SUBMITTED IN OPPOSITION TO THE MOTION WERE INADMISSIBLE HEARSAY AND INSUFFICIENT TO DEFEAT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Opposing counsel asserted that deposition testimony and photographs demonstrated that the area in question contained dirt, footprints and shopping cart tracks through a wet floor. That was incorrect, a gross misstatement of the sworn testimony in this matter, and a misplaced reliance on photographs that were not authenticated during depositions. First, plaintiff never specifically testified to “dirt,” “footprints,” or “shopping cart tracks” in the water in which she fell. Rather, she testified that the water was “clear in color,” was not sticky, and did not appear to have any kind of substance to it (131). Thus, the claim raised below that the water was dirty or contained footprints must be viewed as a feigned issue of fact. Ruck v. Levittown Norse Associates, LLC, 27 AD3d 444, 812 NYS2d 567 (2d Dept 2006) (plaintiff’s failure to describe the water in which he fell as dirty or as having footprints in it until faced with a motion -28- for summary judgment insufficient to raise issue of fact as to constructive notice). Plaintiff did testify that sometime after her accident, she allegedly observed “scuff marks” that “could have” been made by shoes or by shopping carts or by both. However, this Court has made it crystal clear that such claims are legally insufficient to permit the question of whether defendant had constructive notice of a spill to go to the jury. Birthwright v. Mid-City Security, Inc., 268 AD2d 401, 702 NYS2d 325 (2d Dept 2000) (plaintiff’s testimony that water she fell on was “dirty” does not provide evidence that the water existed for a sufficient period of time to establish constructive notice); see also Nuez v. New York City Transit Authority, 289 AD2d 549, 735 NYS2d 194 (2d Dept 2001) (mere face that sand that allegedly caused the plaintiff to slip was dirty cannot serve as evidence that the defendant had constructive notice of the condition); Belfiore v. Copiague Union Free School District, 288 AD2d 247, 733 NYS2d 112 (2d Dept 2001) (fact that liquid that caused plaintiff to slip was dirty does not constitute constructive notice); Berg v. Wegman’s Food Markets, Inc., 242 AD2d 861, 662 NYS2d 897 (4th Dept 1997) (plaintiff’s assertion that sudsy water was dirty and stained her clothes insufficient to raise a question of fact as to whether defendant had constructive notice of same); Cuddy v. Waldbaum, Inc., 230 AD2d 703, 646 NYS2d 51 (2d Dept 1996) (plaintiff’s allegation that lettuce leaves were dirty and appeared walked upon insufficient to establish notice); Kaufman v. Man- -29- Dell Food Stores, Inc., 203 AD2d 532, 611 NYS2d 230 (2d Dept 1994) (mere fact that defendant had not cleaned the area for 45 minutes, or the fact that the flower on which the plaintiff allegedly fell appeared smashed and dirty after the accident, were both insufficient to raise a triable issue with respect to notice to the defendant ); Pirillo v. Longwood Associates, Inc., 179 AD2d 744, 579 NYS2d 120 (2d Dept 1992) (plaintiff’s claim that puddle of soda had footprints in it and was dried in many spots insufficient to impute constructive notice to premises’ owner). Further, it must be pointed out to the Court that the alleged “scuff marks” are not depicted in the only photographs authenticated by plaintiff; to wit, the five photographs marked as Exhibits A through F at her deposition (193-197) Nor are these alleged scuff marks depicted in the video surveillance of the accident itself (407). The only photographs offered on the motions that allegedly showed these “scuff marks” (581-585) were those photographs that did not contain plaintiff and were never authenticated Indeed, if one compares those photographs to the video surveillance of the accident scene, it is plain to see that those photographs were not and could not have been taken at or around the time of plaintiff’s accident. The video surveillance of the accident scene plainly depicts a clean floor with three orange cones in front of the subject ice machine. The photographs submitted by plaintiffs’ counsel contain no orange cones at all. Clearly, these photographs were not taken at -30- or around the time of plaintiff’s accident. Moreover, since these photographs were never authenticated during depositions, they constituted inadmissible hearsay and were not admissible on these motions. Rivera v. GT Acquisition 1 Corp., 72 AD3d 525, 899 NYS2d 46 (1st Dept 2010). CONCLUSION For all the reasons set forth above, the lower court’s order should be reversed, and the plaintiffs’complaint should be dismissed, together with such other, further and different relief as may be just and equitable. Dated: Northport, New York March 30, 2015 Yours, etc. BRODY, O'CONNOR & O'CONNOR, ESQS. Attorneys for Defendant WAL-MART STORES EAST, LP By: _______________________________ PATRICIA A. O’CONNOR Of Counsel: Thomas M. O’Connor Patricia A. O’Connor -31- CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR 670.10.3(f) that 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 pt Line Spacing: Double spaced 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 6530. Dated: March 30, 2015 ______________________________________ PATRICIA A. O’CONNOR -32-