Cox v. Walgreen Store #11808

2021 NY Slip Op 32936(U)

DENISE LAURINE COX, Plaintiff, v. WALGREEN STORE #11808, WALGREEN CO, WALGREEN EASTERN CO., INC., SUNCO REALTY LLC, FERRANDINO & SON, INC., and PRO-TEK LANDSCAPING AND SNOW REMOVAL, Defendants.

Motion Cal. Nos. 6, 7, 8 Motion Sequence No. 3, 4, 5

Index No. 701504/2018

Supreme Court, Queens County

October 1, 2021

Unpublished Opinion

Motion Dates: September 22, 2021

HON CHEREÉ A. BUGGS, JSC

The following e-filed papers numbered EF 85-99; 133-135 and 140 submitted and considered on this motion sequence number 3 by SUNCO REALTY LLC (hereinafter referred to as "Sunco") pursuant to Civil Practice Law and Rules (hereinafter referred to as "CPLR") 3212 granting Sunco summary judgment dismissing all claims and cross claims asserted against Sunco and granting Sunco summary judgment on its contractual indemnity claim; the e-filed papers numbered EF 100-117, 132 and 141-142 submitted and considered on this motion sequence number 4 by defendants WALGREEN STORE #11808, WALGREEN CO WALGREEN EASTERN CO. INC. and FERRANDINO & SONS, INC. (collectively referred to as "Walgreen") also seeking an Order pursuant to CPLR 3212 granting summary judgment and dismissing plaintiff s action with prejudice and the efiled papers numbered EF 118-130, 136 and 143 submitted and considered on this motion sequence number 5 by defendants PRO-TEK LANDSCAPING AND SNOW REMOVAL("Pro-Tek") seeking summary judgment on the grounds that they have no liability and dismissing all claims and cross-claims against them; all seeking such other and further relief as this Court deems just and proper.

Motion Sequence #3 - Papers Numbered

Notice of Motion - Aff- Exhibits........................... EF 85-99

Opposition- Exhibits............................................... EF 133-134

Opposition............................................................... EF 135

Reply Aff EF 140 Motion Sequence #4

Notice of Motion- Aff-Exhibits .............................. EF 100-117

Stipulation EF 132

Opposition ............................................................... EF 135

Reply ........................................................................ EF 141-142

Motion Sequence #5

Notice of Motion Aff- Exhibits ............................... EF 118-130

Opposition ................................................................ EF 135

Opposition ................................................................ EF 136

Reply ........................................................................ EF 143

Plaintiff commenced this action to recover for personal injuries allegedly sustained on December 15, 2017 at a Walgreen's store located at 4915 Flatlands Avenue and Utica Avenue, County of Kings and State of New York (hereinafter referred to as the "Premises"), which was owned by Sunco and leased by WALGREEN STORE #11808, WALGREEN CO, WALGREEN EASTERN CO. INC. The lessor contracted with FERRANDINO & SONS, INC. to provide maintenance and construction services. FERRANDINO & SONS, INC. subcontracted with Pro-Tek to provide snow removal and related services.

Plaintiff alleges on December 15, 2017 she visited the Premises after work and purchased laundry detergent. Plaintiff alleges snow fell that day but that the snow stopped falling prior to her leaving work. As she exited the Premises, Plaintiff alleges she tripped and fell.

Now, Sunco moves for summary judgment alleging it is an out-of-possession landlord. Walgreen, Sunco and Pro-Tek argue that dismissal is warranted because Plaintiff tripped on a shrub root which was inherent and incidental to the landscaped area, Plaintiff was familiar with the location and that dismissal is warranted to the extent that Plaintiff's claims are related to snow-related conditions because there was a winter storm in progress. Also, Pro-Tek argues it did not owe a duty to Plaintiff.

The moving party on a motion for summary judgment has the burden of demonstrating "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 852 [1985]). Once the movant has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). "A property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition" (Bishop v Pennsylvania Ave. Mgt., LLC, 183 A.D.3d 685 [2020], quoting Chang v Marmon Enters., Inc., 172 A.D.3d 678, 678 [2019]). Thus, a defendant moving for summary judgment in a premises liability action has the burden of making a prime facie showing that it neither created the alleged hazardous or defective condition nor had actual or constructive notice of its existence (see Johnson v NBO Realty, Inc., 147 A.D.3d 743 [2017]; Beri v Chung Fat Supermarket, Inc., 125 A.D.3d 587 [2015]).

Inherent and Incidental to the landscape

Sunco, Walgreen and Pro-Tek argue that Plaintiff tripped after bumping her foot against a root that was inherent and incidental to that portion of the landscape. Sunco testified that the landscaped area was placed around the parking area "per the city's green code" (pg 14 line 15).

The parties point to Michael A. Miano v Rite Aid Hqrtrs. Corp. et al. (160 A.D.3d 713 [2nd Dept 2018]) where plaintiff parked his vehicle in defendant's parking lot, stepped upon the curb and walked through a landscaped area adjacent to the parking lot in an effort to access the sidewalk to the defendant's store (id). The landscaped area contained trees, shrubs, mulch and a gap. Plaintiff alleges he sustained injures as he was walking through the gap when he tripped and fell on a root. According to the court, "A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property" (id quoting Jackson Groom v Village of Sea Cliff et al., 50 A.D.3d 1094 [2nd Dept 2008]). "However, a landowner will not he held liable for injuries arising from a condition on the property that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it" (id at 714 [citation omitted]). The court found that defendant established prima facie entitlement to judgment as a matter of law by demonstrating that the root at issue was inherent or incidental to the landscaped area and that it could be reasonably anticipated by those using it (id).

Here, the defendants have established that the root that caused Plaintiff to trip was inherent and incidental to the landscape. However, defendants have failed to establish that said condition "could be reasonably anticipated by those using it"(id) . The facts of this case are distinguishable. Plaintiff alleges snow was covering the area. In fact, there is no dispute that up to six inches of snow was present in the area on December 15, 2017. Plaintiff alleges the root was covered by snow and was not visible. Plaintiff testified that the bushes and the sidewalk were covered in snow. To the extent that Plaintiff's view of the terrain was obstructed by snow, this Court finds there is an issue of fact as to whether Plaintiff could have "reasonably anticipated" that which she claims she could not see. In Patrice Katz v Westchester County Healthcare Corp. et al. (82 A.D.3d 712, 713 [2nd Dept 2011]) the court stated "whether a hazard is open and obvious cannot be divorced from the surrounding circumstances. A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted." The court denied defendants motion for summary judgment (id).

Furthermore, the defendants' assertions that Plaintiff was familiar with the landscape because she frequented the Premises prior to the accident is of no moment, where here the testimony fails to illustrate the extent to which Plaintiff was familiar with the outside parameters of the Premises. To hold that Plaintiff is comparatively or solely at fault because she frequented the Premises, without more, would be speculative.

Storm-in-progress

All defendants argue that Plaintiff's claim should be dismissed due to the snow-in-progress rule. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant to discover and remedy it" (Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837 [1986] [internal citations omitted]; see also Diaz v LaGuardia Express, LLC 186 A.D.3d 1616 [2020]). "Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice" (Milorava v Lord & Taylor Holdings, LLC, 133 A.D.3d 724 [2015]; Fernandez v Festival Fun Park, LLC, 122 Ad3d 794 [2014]). With respect to constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall (see Reed v 64 JWB, LCC, 171 A.D.3d 1228, 119 [2019]; Mehta v Stop & Shop Supermarket Co, LLC, 129 A.D.3d 1037, 1038 [2015]).

Under the...