Dolores Parietti et al., Appellants,v.Wal-Mart Stores, Inc. et al., Respondents, et al., Defendant.BriefN.Y.September 6, 2017 Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 1 JUSTIN B. PERRI 167 Madison Avenue, Suite 202 New York, New York 10016 P: (212) 779 3070 x 102 F: (212) 779 3070 justin@blackstone-law.com May 5, 2017 Via Overnight Mail New York State Court of Appeals 20 Eagle Street Albany, New York 12207 Attention: Chief Clerk of the Court, John P. Asiello, Esq. Re: Parietti v. Wal-Mart, 140 A.D.3d 1039 (Second Department) APL-2017-00049 LETTER-BRIEF FOR PLAINTIFFS-APPELLANTS Dear Mr. Asiello: We represent plaintiffs-appellants Dolores Parietti (“Plaintiff- Appellant”)1 and Robert Parietti (collectively, “Plaintiffs-Appellants”) in the above-referenced matter. We submit these written comments and arguments in support of Plaintiffs-Appellants’ position respectfully urging reversal of the Second Department’s opinion dated June 22, 2016.2 1 All references to the “Plaintiff” and “Plaintiff-Appellant” in the singular are to Dolores Parietti. 2 Parietti v. Wal-Mart, 140 A.D.3d 1039 (2d Dep’t 2016). Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 2 The Plaintiffs-Appellants do not object to the Court’s consideration of this appeal pursuant to Rule 500.11 of the Court’s Rules of Practice. Plaintiffs-Appellants hereby expressly incorporate, by reference, the entire contents of their Respondents’ Brief in Opposition submitted to the Appellate Division, Second Department, as well as the arguments within the lower court motion papers that are contained within the Record on Appeal which was before the Appellate Division, Second Department. R. 435–58; 843–57; see also Rule 500.11(f). Pursuant to Rule 500.11 and this Court’s correspondence of April 13, 2017, we hereby submit these arguments in letter form. We enclose herewith two copies of this letter submission and proof of service of one copy of this submission on the opposing party. Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 3 UNDERLYING FACTS On May 28, 2011, Plaintiff-Appellant, then a seventy-two-year-old grandmother,3 was shopping with her daughter at the Wal-Mart located in Cobleskill, New York, for approximately an hour and a half, at which point the two women checked out their groceries.4 Plaintiff left the register aisle to use the ladies’ room while her daughter brought their groceries to her car parked outside.5 On her way back from the ladies’ room, at approximately 2:10 p.m., Mrs. Parietti slipped and fell in a puddle of liquid near Wal-Mart’s ice freezer.6 In between Plaintiff and the freezer there were orange cones with the words “CAUTION” and “WET FLOOR” with an illustration of a man slipping.7 These cones had been placed near the freezer by Wal-Mart employees—whose regular practice was to keep warning cones near the freezer when the area was wet.8 3 R. 73 (references to the Record on Appeal will be cited herein as “R. __”). 4 R. 83–89. 5 R. 88–90. 6 R. 89. 7 R. 650. 8 R. 302–03 (Ms. Gosselink, a Wal-Mart employee, testified that cones were placed near the freezer to keep people away from the pallets of ice when Wal-Mart employees were loading the freezer with ice bags; those orange cones were to remain in place until the floor was “totally dry”); see also 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”). The accident occurred beyond the checkout registers, directly in the path towards Wal-Mart’s exit. Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 4 Tanya Gosselink, a Wal-Mart employee testified that the orange cones would not be removed by Wal-Mart employees until the floor was “totally dry.”9 This is a clear indication that the floor had been wet for at least one hour, as the cones had been in place for the entirety of the video submitted into evidence by Wal-Mart.10 With Mrs. Parietti still collapsed on the floor, a Wal-Mart employee mopped the area where Plaintiff had slipped.11 The mopping continued for several minutes after Plaintiff was taken off on a stretcher, then another mat was placed in the area where Plaintiff fell, and, finally, the orange warning cones were removed from the area.12 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 9 R. 292–93 (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 (Gosselink testifying that the cones would remain near the ice machine until the area was “completely dry”); see also R. 209–11 (Becky Lamont, another Wal-Mart employee testified 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). 10 R. 407a. 11 R. 407a, 650, and 129–30. 12 R. 407a. Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 5 WATER.”13 A Wal-Mart employee testified that the area in question was cleaned at some point prior to the accident, but record evidence demonstrates that: i) “WET FLOOR” “CAUTION” cones remained in place for at least an hour prior to the accident; ii) CCTV evidence submitted by Wal-Mart does not show this supposed cleanup; and iii) Wal-Mart’s manager’s report indicates that the cause of the accident was water from “ICE BAGS.”14 For her part, Mrs. Parietti testified that: “I found myself on the floor in a puddle of water, scuff marks all around me …. I’m soaking wet,”15 indicating that the water had been there for some time. Plaintiff also testified that a Wal-Mart employee informed her that the ice machine had been leaking prior to her fall.16 The trial judge, taking all of the evidence into account,17 found that Wal-Mart failed to establish entitlement to 13 R. 578–79. 14 R. 209–11, 407a. 15 R. 100 at 13–15. 16 R. 126 at 16–23. 17 Wal-Mart repeatedly claims that the unfavorable testimony of their employees is inadmissible hearsay; even if that were true, it is settled law a handful of hearsay statements, among other non-hearsay sources of evidence, can be relied on by a trial judge for purposes of denying summary judgment. See, e.g., 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”). Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 6 summary judgment as a matter of law and denied the motion for summary judgment.18 QUESTIONS PRESENTED First, when a defendant moves for summary judgment disclaiming liability in a slip-and-fall case, must it prove that both (a) it did not create the hazardous condition and (b) it did not have actual or constructive notice of the hazardous condition? Contrary to this Court’s long-standing precedent, recently re-affirmed in Hutchinson v. Sheridan Hill House Corp., the Second Department answered “no” and applied a disjunctive standard, only requiring that Wal-Mart satisfy either, but not both, prongs of this test. See 26 N.Y.3d 66, 83 (2015). Second, when a defendant admits that it keeps warning cones in place until the floor on its premises is totally dry, and warning cones remain in place for at least an hour immediately adjacent to the situs of the accident, is the premises-owner on notice of a hazardous condition? With no time- table of the existence of the hazardous condition established by Wal-Mart, and directly at odds with First Department precedent, the Second Department answered “no.” 18 R. 4. Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 7 ISSUES PRESERVED As to the first question presented, Plaintiffs-Appellants argued before the Second Department that: “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.” 2d Dep’t Brief for Plaintiffs-Appellants, dated June 19, 2015 (hereinafter “Pls.’ Opp’n”) at 10. The allegation that Wal-Mart not only had notice of the hazardous condition, but also created it, was pleaded from the outset: “[t]he negligence of the said defendants … in causing [,] permitting and/or allowing a slippery, wet [] condition, to be and remain upon the aisle which caused plaintiff to slip and fall…” R. 28 at ¶50 (emphasis added). It was again asserted in Plaintiffs-Appellants’ opposition before the lower court: “[t]he evidence submitted by Wal-Mart shows that it created and/or had notice of the condition on which Ms. Parietti slipped and fell.” R. 445 at ¶26 (emphasis added). Defendants-Respondents’ failure to address Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 8 these allegations was also raised in Plaintiffs-Appellants’ opposition brief before the Second Department: “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.” Pls.’ Opp’n at 6 (emphasis added). Plaintiffs-Appellants further argued that “Wal-Mart failed to affirmatively establish that it neither created the hazardous condition nor was on notice of the condition.” Pls.’ Opp’n at 8 (emphasis added). Contrary to their protestations, it is the Defendants- Respondents who failed to preserve this issue. As to the second issue, Plaintiffs-Appellants, in its affirmation filed in opposition to Defendants-Respondents’ motion for summary judgment, argued that “[t]he evidence submitted by Wal-Mart shows that it created and/or had notice of the condition on which Ms. Parietti slipped and fell.… The only inference that may be drawn from the existence of orange warning cones in the area of Ms. Parietti’s accident, is that Wal-Mart had actual notice of the dangerous condition, attempted to clean it, and placed the wet floor warning cones in that very area.” R. 445 at ¶26. Plaintiffs- Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 9 Appellants again raised the issue of warning cones creating a triable issue of fact on appeal before the Second Department. Pls.’ Opp’n at 13. SUMMARY OF ARGUMENT A defendant who moves for summary judgment in a slip-and-fall case bears the initial burden of affirmatively proving that it did not create the hazardous condition. See Negri v. Stop and Shop, Inc., 65 N.Y.2d 625 (1985) and Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 83 (2015) (movant must demonstrate that it “neither created nor had notice of the defect as a matter of law”). Where, as here, a defendant fails to meet this prima facie burden, the plaintiff’s opposition papers are not even considered—the motion simply fails. See Winegrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). Thus, to shift the burden to Plaintiffs- Appellants, Wal-Mart must first prove that it did not create the hazardous condition. Wal-Mart made no attempt to satisfy the first prong of Hutchinson. As to notice, Wal-Mart’s concession that there were competing theories was fatal at the trial level and should have been fatal to Wal-Mart’s appeal to the Second Department: Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 10 If Wal-Mart concedes19 that there are multiple equally plausible explanations for who created the hazardous condition—all speculative theories that include Wal-Mart having created it—as the trial court concluded (R. 4), Wal-Mart cannot possibly prove that there is no issue of fact on this point. This Court’s ruling in Negri makes this clear: “Viewing the evidence in a light most favorable to the plaintiffs and according plaintiffs the benefit of every reasonable inference, it cannot be said, as a matter of law, that the circumstantial evidence was insufficient to permit the jury to draw the necessary inference that a slippery condition was created by jars of baby food which had fallen and broken a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy the condition. Plaintiffs having made out a prima facie case, it was error to dismiss the complaint.” 65 N.Y.2d at 626 (citations omitted). The reasoning for the Negri Court’s ruling is axiomatic: it is for the finder of fact to weigh circumstantial evidence. In this matter, the trial court recognized that neither side had demonstrated a concrete timeline for the existence of the hazard and therefore found that issues of fact remained, and those issues would be resolved by a jury. R. 3–5. 19 As it did on pages 26–27 of its appellate brief below, conceding uncertainty in the creation of the hazard in 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.” See 2d Dep’t (Replacement) Brief for Defendants-Respondents, dated March 30, 2015 (hereinafter “Defs.’ Br.”) at 26–27. Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 11 The appellate division reversed the lower court’s ruling, finding not only that Wal-Mart demonstrated prima facie entitlement to summary judgment as a matter of law, but also that Plaintiffs failed to present a single triable issue of fact. Parietti v. Wal-Mart, 140 A.D.3d 1039, 1041 (2d Dep’t 2016). The appellate division’s clear error is that it avoided entirely the first prong of the analysis from this Court’s ruling in Hutchinson: whether Wal- Mart demonstrated that it did not create the hazardous condition.20 This was an error of law based on the appellate division’s misreading of its own precedent. See infra section I. Thus, the appellate division ignored the critical issue of whether Wal-Mart demonstrated that it did not create the hazardous condition. This issue is discussed below at section II.A–C. Finally, with regard to notice, the appellate division made the inconceivable finding that Wal-Mart was not on notice of the hazardous condition because “Wal-Mart established that the alleged wet condition did not exist for a sufficient length of time prior to the accident such that its 20 The Second Department shifted the burden to Plaintiffs-Appellants and found that they did not present an issue of fact on creation of the hazard (Parietti, 140 A.D.3d at 1041), but the Second Department did not make the finding that Defendants- Respondents made a prima facie showing that they did not create the hazard. The reason for this error is explained below in section I. Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 12 employees were able to discover and remedy it.” Parietti, 140 A.D.3d at 1041. This is impossible because Wal-Mart did not establish any timetable for the existence of the hazardous condition. See infra section II.D. In fact, all of the record evidence—wet bags placed by Wal-Mart employees, orange cones, damning employee testimony, and an accident report— evidence that is discussed in Justice Pitts’ opinion and not even mentioned in the Second Department’s reversal of that opinion, points to Wal-Mart having created the hazardous condition and, consequently, being on notice of its existence. See infra section II.A–C. The Second Department’s reversible error in failing to follow Negri and Hutchinson is simple. The more nuanced argument presented to this Court, but not essential to resolve this appeal, is the disparate treatment of a premises owner’s placement of warning cones near the site of an accident. As Plaintiffs-Appellants will demonstrate, the Second Department’s ruling on this issue, only understood by one who reviews the underlying trial order, is directly at odds with treatment of the same circumstances in the First Department. See infra section II.D. Plaintiffs- Appellants respectfully submit that the First Department’s position can be harmonized with this Court’s precedent regarding notice of a hazardous Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 13 condition; the Second Department’s position below, on these facts, ignores an obvious indication of a premises owner’s notice of a hazardous condition. ARGUMENT I. THE APPELLATE DIVISION’S RULING MISAPPLIED A DISJUNCTIVE STANDARD FOR SLIP-AND-FALL CASES. A. The Legal Standard Set Forth by this Court To prevail on a motion for summary judgment in this context, Wal- Mart must have demonstrated that it “neither created nor had notice of the defect as a matter of law.” Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 83 (2015) (emphases added). The Court’s use of ‘neither / nor’ language is known as the negative correlative conjunction, and means that a movant must satisfy both conditions to shoulder its burden. See, e.g., Technicon Electronics Corp. v. American Home Assurance Co., 74 N.Y.2d 66, 75 (1989) (“[s]ince the exception is expressed in the conjunctive, both requirements must be met for the exception to become operative.”). Only if a defendant can make both showings does the burden shift to plaintiff to prove the existence of a triable issue of fact. Id. at 79. Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 14 B. The Second Department Applied an Incorrect Standard In reversing the decision of the trial judge, the appellate division made the error of applying a disjunctive rather than conjunctive standard. In other words, the appellate division expressly changed this Court’s ‘and’ into an ‘or.’ This error is apparent: the appellate division stated that a “defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the alleged hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.” Parietti, 140 A.D.3d at 1040 (quoting Zerilli v. Western Beef Retail, Inc., 72 A.D.3d 681 (2d Dep’t 2010) (emphasis added)). This is a clear error of law, perpetuated for nearly a decade and only in the Second Department. C. The Incorrect Standard Adopted by the Second Department Continues to Cause Unpredictable Application of the Law The Zerilli court confused the burdens applicable to defendants and plaintiffs. In that case, the court misstated the defendant’s standard by making it disjunctive—an error repeated in the appellate division’s order in this case. This error was borne out of the wording used in Perlongo—an Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 15 earlier slip-and-fall case out of the Second Department—which states that “[t]he imposition of liability in a slip-and-fall case requires evidence that the defendants created the dangerous condition which caused the accident, or that they had actual or constructive notice of that condition and failed to remedy it within a reasonable time.” Perlongo v. Park City 3 & 4 Apts., Inc., 31 A.D.3d 409, 410 (2d Dep’t 2006) (emphasis added). This erroneous use of disjunctive language in Perlongo has resulted in inconsistent and unpredictable application of the law. Another recent case, post-Perlongo and cited by the appellate division in its decision, applied the correct standard. See Mehta v. Stop & Shop Supermarket Co., LLC, 129 A.D.3d 1037, 1038 (2d Dep’t 2015) (“A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it.”) (emphasis added). The Second Department continues to apply the disjunctive standard in some of its opinions, but not others. Compare Cedeno v. Higuita, 147 A.D.3d 1013, 1014 (2d Dep’t 2017) with Mehta, supra at 1038. Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 16 D. Wal-Mart Did Not Shoulder Its Burden The appellate division here applied the incorrect disjunctive standard from Perlongo. As such, Wal-Mart’s failure to even brief the issue that it did not create the alleged hazardous condition went unnoticed. In Wal-Mart’s appellate brief, its section entitled “DEFENDANT MADE ITS PRIMA FACIE SHOWING OF ENTITLEMENT TO SUMMARY JUDGMENT” does not offer a single word of explanation of how Wal-Mart carried this portion of its burden. Defs.’ Br. at 17–19. The burden was Wal-Mart’s to carry as ‘creation’ of the hazard was pleaded. See supra, section Issues Preserved. Wal-Mart was singularly, and erroneously, focused on whether they were on notice of the hazard. Despite record evidence to the contrary (see infra, section II), the appellate division found that Wal-Mart could not have known about the hazardous condition and ended its inquiry there. Parietti, 140 A.D.3d at 1040. The appellate division then stated that there was no “triable issue” regarding creation of the hazard. This reasoning, however, ignores the obvious: Wal-Mart cannot shift the burden to Plaintiff without first satisfying its prima facie obligation. Wal-Mart made no attempt to do so. Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 17 Concluding its analysis prematurely, the appellate division impermissibly shifted the burden to Plaintiff to demonstrate the existence of a triable issue of fact. Plaintiff’s burden, though prematurely shifted, was nonetheless satisfied. See infra, section II. It is contrary to the longstanding law of New York, codified in CPLR 3212(b)21, to place that burden on a non-movant on a motion for summary judgment. See, e.g., Zuckerman v. New York, 49 N.Y.2d 557, 562 (1980); see also Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957) (“[t]his drastic remedy should not be granted where there is any doubt as to the existence of such issues, or where the issue is ‘arguable’; issue-finding, rather than issue-determination, is the key to the procedure”) (citations and quotations omitted). This Court’s inquiry can end at this juncture. That is because when, as here, a movant fails to shoulder its burden, the non-movant’s opposition need not be considered. Winegrad, 64 N.Y.2d at 853. Remaining triable issues of fact, briefed below (infra, section II), only need to be considered if 21 “[movant] shall show that … the cause of action or defense has no merit.… The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.… the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact.” Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 18 this Court rejects the conjunctive standard of Hutchinson and affirms the Second Department’s disjunctive standard. II. THE RECORD CONCLUSIVELY ESTABLISHES ISSUES OF FACT REGARDING BOTH CREATION AND NOTICE OF THE HAZARD. Wal-Mart ignored its burden because there is no evidence in the record that refutes Wal-Mart’s accident report; a report that—combined with video evidence and testimony submitted by Wal-Mart employees, Plaintiff, and witnesses—permits a juror to reasonably infer that Wal-Mart is responsible for creating the hazardous condition at least an hour prior to the accident. A. Wal-Mart’s admissions regarding “WET FLOOR” cones, together with CCTV footage, establish issues of fact. Wal-Mart’s Reply Brief submitted to the appellate division, dated July 2, 2015, admits that Wal-Mart both created the hazard and had notice of it. On page 2 of Wal-Mart’s Reply Brief before the Appellate Division, Wal-Mart explains away the testimony of its own employee as follows: “Ms. Gosselink did not testify that cones were placed at the machine because the floor was wet … Rather, Ms. Gosselink testified that cones are placed at the machine to warn customers of the presence of the pallet used to stock the machine (R. 302– 03). Specifically, she testified that in order to fill the machine with bags of ice, a pallet containing ice bags is placed in front of the machine and then orange cones are placed around the pallet Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 19 ‘so people stay away from [the pallet]’ (R. 302–03). She went on to testify that once the machine was stocked and the pallet was removed, the floor would be checked to see if it was wet (R. 303). If it was wet, the floor would be cleaned and the cones would not be removed until such time as the floor was dry from the cleaning (R. 303).” See 2d Dep’t Reply Brief for Defendants-Respondents, dated July 2, 2015 (hereinafter “Defs.’ Reply”) at 2–3 (emphases added). So, according to Wal-Mart, the orange cones—initially placed near the ice machine to keep customers away from a pallet—were only to remain in place if the floor was wet. They were to be removed once the floor was “totally dry.” Indeed, the cones remained near the ice machine for at least one hour; they had been in place for the entirety of the video submitted into evidence by Wal-Mart.22 By Wal-Mart’s logic, the floor was supposed to be cleaned at least an hour prior to Mrs. Parietti’s slip-and-fall. There is no indication in the Record that the floor was cleaned to the point that it was dry. Every reasonable inference indicates that it remained wet for the entire time. Wal-Mart has not proven otherwise. The floor was finally cleaned by a Wal-Mart employee who, after Mrs. Parietti’s fall, mopped the area for 22 R. 407a. Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 20 several minutes.23 After several minutes of mopping water that had been on the floor for at least an hour, the floor was now finally dry and the orange cones removed. The Second Department’s opinion sets aside non-movant’s (Plaintiffs- Appellants’) reasonable inferences, instead adopting Defendants- Respondents’ conclusory determinations, with no evidence whatsoever, that “Wal-Mart established that the alleged wet condition did not exist for a sufficient length of time prior to the accident such that its employees were able to discover and remedy it.” Parietti, 140 A.D.3d at 1041. Defendants-Respondents should indicate in its opposition to this submission, with established, unimpeachable facts from the Record, how long this hazard existed prior to the accident. They cannot. The absurdity of Defendants-Respondents’ argument—that video evidence demonstrates that there was no water on the floor—does not merit an explanation here, but is detailed fully in Plaintiffs-Appellants’ brief before the Second Department at pages 15–17 and adopted by this submission. See also section II.D., infra. Justice Pitts, rejecting Defendants-Respondents’ argument, recognized that surveillance video does not carry Defendants- 23 R. 407a, 650, and 129–30. Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 21 Respondents’ burden because the footage cannot measure moisture levels on Wal-Mart’s floors. R. 4 (“[t]he video footage submitted by Wal-Mart does not clearly show whether water was on the floor or how long the condition may have existed”). Justice Pitts refused to engage in fact- finding. B. Wal-Mart’s accident report creates issues of fact. Wal-Mart’s accident report admitted that the floor was “WET FROM ICE BAGS.”24 This report raises an issue of fact and conflicts with Defendants-Respondents’ theories on creation of the hazard, yet it is not mentioned anywhere in the appellate division’s opinion. If all parties agree that the floor was wet from ice bags, those ice bags were loaded by Wal-Mart employees, and no customer can be seen on the video footage with a leaking ice bag, how can a court determine that there is no issue of fact regarding creation of the hazard? Wal-Mart may claim that the possibility of a customer having created the hazard would not be seen on CCTV footage, but that position would be outrageous, considering their reliance on CCTV footage for their 24 R. 578–79. Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 22 unsupported defense that the floor made wet just prior to the accident. Defs.’ Br. at 3, 8–10. Defendants-Respondents are attempting to support their summary judgment motion by proving a negative (that a clear substance was on the floor until just prior to the accident) with video evidence combined with testimony of passers-by who did not see the hazard—a clear substance. But this is an impossible task. Wal-Mart’s speculative theory collapses under the weight of Record evidence demonstrating Wal-Mart’s liability. Wal-Mart will attempt to explain away its employee’s accident report (another admission that the floor was “wet from ice bags”) by claiming that Plaintiffs speculate by placing responsibility for the wetness caused by Wal-Mart’s ice bags on a Wal-Mart employee. Again, it is not Plaintiffs’ burden to establish the source of the hazard on Defendants’ premises—that is movant’s prima facie burden. Winegrad, 64 N.Y.2d at 853. C. Wal-Mart’s position on the WET FLOOR cones and ice bags creates issues of fact. On pages 16 and 23 of its appellate brief, dated March 30, 2015, 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 Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 23 employees had left the orange cones there after stocking the machine with ice.” Defs.’ Br. at 16, 23. Wal-Mart is conceding that there are competing versions of the facts. But they have a theory (an issue of fact for a jury’s resolution) that is not consistent with the video submitted. Wal-Mart’s theory is, in fact, less likely to be the explanation for the puddle in which Mrs. Parietti slipped—making the competing theories ripe for jury resolution: was the floor wet from a) a mystery customer or b) Wal-Mart’s employees who admittedly loaded the ice machine one hour prior and placed orange cones near the machine until the area was dry (Defs.’ Reply at 2)? Wal-Mart’s theory should have led the Second Department directly to Negri, wherein plaintiff slipped on a slippery substance that may have been baby food and may have fallen from defendant’s shelves at some undetermined time. 65 N.Y.2d 625. Like defendant in Negri, Wal-Mart fails to shift the burden back to Plaintiff and cannot be granted summary judgment because Wal-Mart has not and cannot discredit the reasonable inference—that it created the hazardous condition—with any actual evidence, eliminating all issues of fact for a jury’s consideration as to who created the hazard. Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 24 D. The Defendants-Respondents did not affirmatively establish that they did not have notice. Assuming, arguendo, that Wal-Mart established that it did not create the hazardous condition, Wal-Mart failed to establish that it did not have notice of the hazardous condition. In its Decision and Order dated June 22, 2016, the appellate division found that Defendants were not on notice of the hazardous condition because “Wal-Mart established that the alleged wet condition did not exist for a sufficient length of time prior to the accident such that its employees were able to discover and remedy it.” Parietti, 140 A.D.3d at 1041. This, the appellate division reasoned, was established through video recordings and employee affidavits demonstrating that employees “monitored the conditions at the front entrance of the store … and walked back and forth in the area where the injured plaintiff fell only minutes before [Plaintiff’s] accident.” Parietti, 140 A.D.3d at 1041. This is impossible. Wal-Mart could not possibly meet its burden of affirmatively establishing that the wet condition did not exist for a sufficient time because Wal-Mart did not establish any timeline as to when the puddle was created. Wal-Mart merely proved and, in fact, argued in its Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 25 Reply Brief below, that the hazard existed for at least one hour prior to Mrs. Parietti’s fall. Defs.’ Reply at 2–3 (“If it was wet, the floor would be cleaned and the cones would not be removed until such time as the floor was dry from the cleaning”). If Wal-Mart was arguing that there was no hazard at all—its only option at this point—that is an issue of fact to be determined by a jury. Wal-Mart’s argument that the hazardous condition was not visible—to its employees or Mrs. Parietti on her first pass by the area—flies in the face of its explanation that the orange cones only remain in place when Wal-Mart is aware that the floor is wet. What is clear from the evidence discussed herein in Section II.A. (supra) is that Wal-Mart’s keeping the cones near the ice machine for at least one hour prior to Mrs. Parietti’s fall would happen only if the floor was wet and they would only be removed once the floor was dry. See Defs.’ Reply at 2–3. So a jury could certainly infer that the floor had gotten wet at least one hour prior to Mrs. Parietti’s fall and with Wal-Mart’s knowledge. Wal-Mart presented evidence that its employees happened to pass by the location of the hazard and did not notice the puddle. R. 408–12; see also Pls.’ Opp’n at 7–8. This does not satisfy a defendant’s affirmative obligation to demonstrate lack of notice in a slip-and-fall case. See Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 26 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”) (emphases added). It is important to note that Wal-Mart’s claim regarding particularized or specific inspection is based solely on its general ‘clean as you go’ policy, combined with the fact that several employees “trained to inspect and make observations of the store’s floor” (R. 628) walked past the location of the hazardous condition in the hour prior to the accident. Wal-Mart did not produce a single inspection and/or maintenance record for the date of the incident. R. 460, 463. It also stands to reason that with cones present—and we know that cones are only present when water is present—that these employees who were inspecting would have noticed the cones and they would have made sure that the area, which had been wet for at least an hour, was cleaned and dried, orange cones removed. But that is not what happened because that was not the role of these employees who were merely passing by, not proactively engaged in an inspection of that particular area and not Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 27 specifically tasked with maintaining and cleaning the area. See Pls.’ Opp’n at 7–8; R. 407a. If this conduct satisfies the standard for “particularized” inspection and cleaning, the standard is meaningless. It allows defendants like Wal- Mart to duck responsibility; defendants who are familiar with New York premises liability law and more concerned with paying lip-service to a checklist than actually keeping their customers safe—this much is obvious from the fact that the orange cones remained near the ice machine for over an hour. From this evidence, a jury can conclude that with the passage of time the ice and water on the mat near the ice machine melted, saturating the mat—a mat that was replaced after Mrs. Parietti’s fall—causing water to travel to the tile floor where Mrs. Parietti slipped and fell. Finally, as to the issue of constructive notice, the appellate division’s Order is directly at odds with several cases out of the First Department: Rosado v. Phipps Houses Svcs., Inc., 93 A.D.3d 597, 940 N.Y.S.2d 866 (1st Dep’t 2012) and Geffs v. City of New York, 105 A.D.3d 681, 963 N.Y.S.2d 657 Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 28 (1st Dep’t 2013).25 In Rosado, 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. Id. 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, 105 A.D.3d at 681 (the presence of warning signs constitutes 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). Wal-Mart will attempt to cast doubt on the applicability of Rosado and Geffs with a slew of appellate division cases, each easily distinguishable: Pluhar v. Town of Southampton, 29 A.D.3d 975 (2d Dep’t 2006): “The presence of a warning sign at the site is, at best, evidence of a general awareness of slippery conditions, but is not notice of the specific cause of plaintiff’s accident, which remains unidentified.” 25 See also Dabbagh v. Newmark Knight Frank Global Mgt. Servs., LLC, 99 A.D.3d 448, 450 (1st Dep’t 2012) (“[t]he timing of the placement of warning cones in the area by a security guard or housekeeping raises a question of fact as to actual notice”). Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 29 In Pluhar, a permanent sign near a boat ramp warned boaters that the ramp where plaintiff slipped was often slippery, for obvious reasons. Plaintiff in Pluhar could not identify the cause of her fall. Unlike defendant in Pluhar, Wal-Mart placed cones near the ice machine only when it was wet. Seferagic v. Hannaford Bros. Co., 115 A.D.3d 1230 (4th Dep’t 2014): “the warning signs were put out as a safety precaution and not in response to complaints… [the manager] stated that the floor was dry following plaintiff’s fall and that no remedial action was required.” Directly at odds with the facts in this case, the floor in Seferagic was not soaking wet when plaintiff in that case fell—in fact, it was dry. The Seferagic court would not allow a warning sign to magically turn a dry floor into a wet one. Here, Wal-Mart is trying to turn this case on its head by turning a wet floor into a dry one. All the evidence establishes that the floor was wet, including: 1. testimony from Mrs. Parietti indicating that she fell in a puddle of water near a scuff-marked floor (R. 100 at 13–15 and R. 126 at 16–23); 2. testimony from Mrs. Williams indicating that the area where Mrs. Parietti had fallen was extremely wet (R. 347 at 13–14 and 350); 3. testimony from Mr. Williams corroborating that the area in question was wet (R. 393 at 18); 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); Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 30 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); 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). Snauffer v. 1177 Avenue of the Ams., LP, 78 A.D.3d 583 (1st Dep’t 2010): “Defendants demonstrated that the warning signs were put out as a safety precaution and not in response to complaints regarding the condition of the floor where plaintiff fell.” Tucci v. Stewart’s Ice Cream Co., 296 A.D.2d 650 (3d Dep’t 2002): “during inclement weather, employees exercised ‘added awareness’ of wet conditions and mopped whenever necessary. This evidence of defendant’s general awareness of possible hazards created by water tracked into the store during inclement weather and the precautions taken at the store to alleviate them is not inconsistent with the evidence demonstrating defendant’s lack of notice of the particular wet condition…” Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 31 As here, Wal-Mart’s general policy of having employees on the lookout for spills cannot eclipse the mountain of evidence establishing that Plaintiff fell in water that was on the floor for an extended period of time. The critical distinction between this case and Wal-Mart’s inapposite cases is that this case involves a response to a floor made wet by defendant’s employees. In spite of the fact that the orange warning cones were depicted in the Record (R. 650) and referenced throughout Plaintiffs-Appellants’ brief before the Second Department (Pls.’ Opp’n at 3, 4, 9, 12, 13, 20, 21), the appellate division’s ruling does not even mention the word “cone.” The evidence, as the supreme court correctly determined, “raises questions of fact as to whether Wal-Mart had notice of the allegedly defective condition.”26 Wal-Mart did not satisfy its prima facie burden as that burden is described by this Court in Hutchinson. The defense of ‘we-didn’t-notice-it and we-don’t-know-how-it-got- there’ only prevails if the appellate court, as it did here, applies the disjunctive Perlongo standard. It cannot pass muster on a motion for 26 R. 4. Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 32 summary judgment in satisfaction of this Court’s precedent in Hutchinson. This is not a close call. CONCLUSION For the reasons stated herein, and upon the Appellate Division briefs and Record, we respectfully request that this Court reverse the Second Department’s ruling and affirm the ruling of the trial court denying Wal- Mart’s motion for summary judgment and afford Plaintiffs-Appellants such other further relief as the Court may deem just and proper. Respectfully submitted, BLACKSTONE LAW GROUP LLP /S/ Justin B. Perri Justin B. Perri Alexander J. Urbelis John D. Lovi 167 Madison Avenue, Suite 202 New York, New York 10016 Phone: (212) 779-3070 Appellate Counsel for Plaintiffs- Appellants Dolores Parietti and Robert Parietti Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 33 Michael S. Langella MICHAEL S. LANGELLA, P.C. 888 Veterans Memorial Highway Hauppauge, New York 11788 Phone: (631) 285-7500 Trial Counsel for Plaintiffs- Appellants Dolores Parietti and Robert Parietti cc: Brody, O’Connor & O’Connor, Esqs. Patricia A. O’Connor Counsel for Defendants-Respondents Wal-Mart Stores, Inc. and Wal-Mart Stores, East, LP 7 Bayview Avenue Northport, NY 11768-1501 Phone: (631) 261-7778 Letter Brief on behalf of Plaintiffs-Appellants Parietti v. Wal-Mart, APL-2017-00049 34 CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR § 500.11(m) that the foregoing letter was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Book Antiqua Point size: 14 Line spacing: Double The total number of words in the letter, inclusive of point headings and footnotes and exclusive of the statement of the status of related litigation; the corporate disclosure statement; the table of contents, the table of cases and authorities and the statement of questions presented required by subsection (a) of this section; and any addendum containing material required by § 500.1(h) is 6,572. Dated: May 5, 2017 Respectfully submitted, BLACKSTONE LAW GROUP LLP /S/ Justin B. Perri Justin B. Perri