Preview
FILED: NEW YORK COUNTY CLERK 04/22/2016 05:40 PM INDEX NO. 151722/2014
NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/22/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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MANUEL ALICEA,
Index No. 151722/2014
Plaintiff,
- against -
1350 BROADWAY LLC and NEWMARK &
COMPANY REAL ESTATE, INC. d/b/a
NEWMARK GRUBB KNIGHT FRANK,
Defendants.
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REPLY MEMORANDUM OF LAW OF DEFENDANTS 1350 BROADWAY LLC AND
NEWMARK & COMPANY REAL ESTATE, INC. d/b/a NEWMARK GRUBB KNIGHT
FRANK IN FURTHER SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT
________________________________________________________________________________
Richard B. Cohen, Esq.
Mukti N. Patel, Esq.
Office: 445 Park Ave., 9th Floor
New York, NY 10022
Mail: 124 West 60th Street, Suite 25E
New York, NY 10023
Tel: (212) 247-6122
Email: richard.cohen@fisherbroyles.com
Attorneys for Defendants,
1350 Broadway LLC and Newmark &
Company Real Estate, Inc. d/b/a Newmark
Grubb Knight Frank
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Defendants, 1350 Broadway LLC and Newmark & Company Real Estate, Inc. d/b/a
Newmark Grubb Knight Frank (collectively “Newmark”), by their attorneys FisherBroyles LLP,
respectfully submits this reply memorandum of law in further support of their motion for
summary judgment, pursuant to CPLR section 3212.
ADDITIONAL BACKGROUND
Defendants were previously represented by other counsel until November 10, 2014, when
a consent for change of counsel was filed. The prior compliance order dated July 31, 2014 was
entered when prior counsel represented Newmark. The subsequent compliance conference
orders dated December 4, 2014, March 26, 2015, June 18, 2015, and October 8, 2015 do not
address the issue of when summary judgment motions are to be filed. (Exhibits A, B, C, and D).
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ARGUMENT
I. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IS TIMELY AND
APPROPRIATELY CONSIDERED BY THE COURT.
Plaintiff’s main contention in his opposing papers is that this motion is untimely under
the Preliminary Conference Order, dated July 31, 2014, even though Plaintiff acknowledges that
its was timely filed under CPLR Rule 3212, having been filed within 120 days of the filing of
the Note of Issue. (The initial order required any dispositive motions to be made within 60 days
of filing of the Note of Issue).
Plaintiff’scontention is meritless and exalts form over substance. The subsequent
compliance and status conference orders dated December 4, 2014, March 26, 2015, June 18,
2015, and October 8, 2015 all modified and totally changed the provisions of the initial order,
updating and superseding virtually all of the significant dates in this litigation and thereby
rendering the entire reason and purpose of the dates in that initial order moot. Indeed, the initial
order provided that plaintiff had to file the Note of Issue by April 3, 2015 – 6 months before the
date it was actually filed by Plaintiff – which would have made it untimely under the initial
order.
More importantly, there is not a hint from Plaintiff as to how he has been prejudiced by
the filing of this motion before the expiration of 120 days from filing of the Note of Issue, as per
CPLR Rule 3212, which is the touchstone of any consideration of a claim of untimeliness. This
case is not even close to being on “the eve of trial” -- the case has not yet reached the trial
calendar, and in fact, after one court-ordered Early Settlement Conference conducted on March
9, 2016, this case has been scheduled for another such court conference to be conducted on June
14, 2016 – demonstrating that plaintiff has not, and cannot, demonstrate any prejudice by the
filing of this motion.
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As explained in Brill v. City of New York, 2 N.Y.3d 648 (2004), the genesis of CPLR
Rule 3212 was to prevent “[e]leventh-hour summary judgment motion, sometimes used as a
dilatory tactic, [that] left inadequate time for reply or proper court consideration, and prejudiced
litigants who had already devoted substantial resources to readying themselves for trial.” Id. at
651. The purpose was to set an outside limit for when summary judgment motions could be
filed; i.e., no more than one hundred twenty (120) days after the note of issue was filed. Id.
In Brill, the City waited more than a year after the trial calendar papers were filed and
well past the 120-day limit specified in CPLR Rule 3212(a) before moving summary judgment
and provided no explanation for doing so. Id. at 650. The only justification for the late filing of
the summary judgment motion was that the motion was meritorious. Id. at 650, 653. In light of
the egregious delay, the Court of Appeals held that the summary judgment motion should not
have been considered. Id. at 650.
In Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75 (1st Dept. 2013), the Court
further explained that it was not holding that an untimely summary judgment motion must
automatically not be considered, but rather that when a motion is filed beyond the limit set by
CPLR Rule 3212(a) the party must show good cause for the delay. Id. at 86. In Kershaw, the
summary judgment motion was filed almost two months after the deadline set by the Court for
the filing of such motions and disingenuously labeled a cross motion. Id. at 80. The Court
rejected the justification that the motion should be permitted as itwas simply a cross motion
because the Court found that the motion was not, in fact, a cross motion. Id. at 87. The “cross
motion” addressed different issues that addressed in the original summary judgment motion and
was returnable after the return date of the original motion. Id. at 88. Permitting the motion to
proceed would work an injustice as if it had been labeled correctly it would not be considered
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without an explanation for the delay. Id.
Defendants here have exhibited no “egregious” or disingenuous conduct to warrant
disregarding their motion for summary judgment. Defendants did not, of course, act in
intentional disregard of the initial order, but simply believed that, as the original order had been
superseded by the many subsequent orders that did not set a deadline for filing dispositive
motions, the operative time for such filing was the one hundred twenty (120) days provided for
by the statute. Defendants did not address the issue of good cause in their moving papers
because they believed, in good faith, that the motion was timely.
II. DEFENDANTS HAVE ESTABLISHED A PRIMA FACIE CASE THAT
PLAINTIFF HAS FAILED TO REBUT ENTITLING THEM TO SUMMARY
JUDGMENT.
A. Defendants Rely on Plaintiff’s Version of the Facts as on a Motion for
Summary Judgment the Court Must Consider Disputed Facts in a Light
Most Favorable to the Nonmoving Pary.
“Summary judgment is a drastic remedy which shall be granted only when the movant
has established that there are no triable issues of fact.” Parry v. County of Onondaga, 906
N.Y.S.2d 774 (N.Y. Sup. Ct. 2009). “Once the movant has established a prima facie entitlement
to judgment as a matter of law, the party opposing the motion must come forward with proof, in
evidentiary form, establishing the existence of triable issues of fact or must demonstrate an
acceptable excuse for its failure to do so.” Id.
As noted in the moving brief, “the court must view the evidence in the light most
favorable to the non-moving party and must give the non-moving party the benefit of all
reasonable inferences which can be drawn from the evidence” and “determine if triable issues of
fact exist.” Id. “[T]he role of the Court is . . . not to delve into or resolve issues of credibility.”
Delgado v. 313-315 W. 125th St. LLC, 2015 N.Y. Misc. LEXIS 4166 (N.Y. Sup. Ct. Oct. 1,
2015). However, mere conclusions of law or fact are insufficient to defeat a motion for summary
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judgment. Parry, 906 N.Y.S.2d at 774.
Thus, for purposes of this motion only, Defendants have, as they must, accepted as true
the facts as recited by Plaintiff, namely that there were no mats present in the lobby during the
alleged incident (among other things). Indeed, Defendants’ moving papers did not discuss the
issue of mats because Defendants contend that this issue is not material or dispositive on the
motion, and that summary judgment must be granted irrespective of whether mats were down or
not. Defendants’ silence as to this issue should in no way be deemed or construed to be a
representation that Plaintiff is correct on the issue.1 However, even if for purposes of summary
judgment Plaintiff’s position on this issue is accepted as true, Plaintiff still cannot establish any
actual or constructive notice of an actual, as opposed to theoretical, dangerous condition that
would have imposed any affirmative duty upon Defendants.
Plaintiff’s case seems to rely almost entirely on an alleged “slip test” on the subject lobby
floor conducted by his alleged expert almost nine months after the alleged incident. Without ahy
support in fact or logic, Plaintiff extrapolates backwards from this, and concludes that an
allegedly slippery floor on October 30, 2013 meant that the floor was just as slippery nine
months earlier – February 2, 2013. This testimony and untimely slip test is not probative of any
fact in issue, is irrelevant and should be disregarded.2
However, solely for purposes of this motion, even assuming Plaintiff’s slip test has any
1
To the contrary, should this matter proceed to trial, Defendants intend to prove that when
plaintiff alleges the incident occurred, mats were indeed down at the lobby entrances. This is in
conformance with the many statements made by Defendants’ witnesses -- as quoted by plaintiff
in his opposing papers - that mats were always down on the lobby entrance floor during the
winter months, including February, when plaintiff alleges the incident occurred. .
2
Again, should a trial be necessary, Defendants fully intend to challenge that probative value of
a test conducted nine months after the alleged incident when the floor had been subjected to
months of normal wear and tear. Further, Defendants will proffer their own slip test conducted
prior to the incident which shows that the floor was within acceptable “slip” standards.
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probative value, constructive knowledge of the alleged dangerous condition of the floor at the
time of the incident cannot be imputed to Defendants when it was Plaintiff himself who
admittedly tracked the moisture into the lobby and claims to have immediately fallen.
B. Plaintiff Himself Testified That the Lobby Floor Was Clean and Dry
Obviating Any Need For Defendants to Rely On Any Evidence of the Floor
Being Clean or Inspected.
Plaintiff’s i substantive response to this summary judgment motion is simply that
Defendants have not made a prima facie showing that they did not have constructive notice of
the alleged dangerous condition because Defendants failed to offer evidence of when the area
was last cleaned or inspected.
Once again, Plaintiff’s argument is immaterial and irrelevant. As Defendants pointed out
in their moving brief, Plaintiff testified that the floor inside the lobby was clean and dry when he
entered the building. Thus, there is no need for Defendants to proffer evidence as to the last time
that the floor was cleaned or inspected. Plaintiff himself acknowledges that the condition of the
floor when he entered the building was clean and dry, i.e., not dangerous. Thus, Plaintiff’s own
testimony conclusively establishes Defendants’ prima facie case that it did not have constructive
knowledge of any allegedly dangerous condition.
C. Plaintiff Mischaracterizes Deposition Testimony.
To support his claim and in attempt to defeat this summary judgment motion, Plaintiff
cherry picks disembodied quotes from the deposition testimony of Andy Meirama, the long-time
chief building engineer, to make it appear that he did not know whether or not mats were down
on the lobby floor entrance on the night of Plaintiff’s alleged incident. This is simply
disingenuous (as well as, as stated before, immaterial). Meirama clearly testified that during the
fall/winter months, from September to April or May (Meirama Dep. at p. 71, lines 2-25) when
“the atmosphere conditions outside are more prone to be wet” (Meirama Dep. at p. 72, lines 5-6),
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“the end mats are there all the time.” (Meirama Dep. at p. 71, lines 11-12). He emphasized that
during the winter season – including early February - the end mats are down “24-7.” (Meirama
dep. at p. 72, lines 7-12). That Meirama could not recall the particular night at issue is hardly
surprising or material given the long period of time that had elapsed from the alleged incident to
the time that itwas brought to the attention of Defendants. While Defendants are not taking a
position on the issue of the mats on this motion, it should be noted that Meirama did not testify
as Plaintiff would have liked.
Moreover, and more significantly, Plaintiff omits to mention Meirama’s uncontradicted
testimony that “when the mats are down caution signs are up” by the entrance doors, 24-7 in the
winter months – including February 2013. (Meirama Dep. at p. 73, lines 3-14). That is,
Meirama stated that metal caution signs were placed down at the lobby entrances during the
winter months. Plaintiff himself placed into the record on this motion the deposition testimony of
Meirama, and as the party opposing summary judgment, would reasonably have been expected
to raise as many issues of material fact as possible. Therefore his failure to deny – or even
mention -- the caution signs mentioned noted by Meirama is tantamount to an admission that
they were, in fact, placed at the doors on the night of the alleged incident. (For that matter, since
Plaintiff was well acquainted with the building and its lobby, having repeatedly made his work
rounds there, his failure to deny Meirama’s testimony that mats were always down during the
winter months is also tantamount to an admission).
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D. The Case Law Cited by Plaintiff Does Not Support Plaintiff’s Proposition
that Defendants Had Constructive Knowledge of the Alleged Dangerous
Condition.
Defendants cannot be imputed with constructive knowledge of a dangerous condition that
simply did not exist until the moment that Plaintiff walked into the building. For constructive
notice of a dangerous condition to exist, the condition must be “visible and apparent and . . .
must exist for a sufficient length of time prior to the accident to permit defendant’s employees to
discover and remedy it.” Gibbs v. Port Auth. of New York, 17 A.D.3d 252, 255 (1st Dept. 2005)
(quoting Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837 (1986)). A
“general awareness” a dangerous condition may be present is insufficient. Wise-Love v. 60
Broad St. LLC, 75 A.D.3d 487 (1st Dept. 2010); Mormile v. Jamestown Mgt. Corp., 71 A.D.3d
748, 749 (2d Dept, 2010).
A “general awareness” is exactly the basis upon which Plaintiff rests his claim. Plaintiff
attempts to assign constructive knowledge to Defendants because a weather forecast indicated
that it might snow the next day and the floor may become wet. To be clear, the dangerous
condition here can only be a wet floor in the building, not a weather forecast of possible
inclement weather that had yet to materialize. This wet floor did not exist until Plaintiff walked
in the door tracking the moisture in. See Gibbs, supra, 17 A.D.3d at 255 (holding that there can
be no inference of constructive knowledge where evidence strongly suggested that any water had
been tracked in by individual immediately preceding the plaintiff).
At best, arguably, viewing Plaintiff’s version of the facts in alight most favorable to him,
the potential for a dangerous conditions existed only when it began to snow. But even accepting
this as true, Plaintiff testified that it began to snow only an hour before he arrived at the building,
late on a Saturday night when the building was closed to the general public, and the only person
in the building was the security guard. As such, the alleged dangerous condition did not exist for
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a sufficient period of time or for any period of time that constructive knowledge of it can be
attributed to Defendants. Ford v. Citibank, N.A., 11 A.D.3d 508-509 (2d Dept. 2004) (indicating
that an inference of constructive knowledge can only exist where there is evidence of how long a
“specific wet condition existed”).
The cased cited by Plaintiff are distinguishable by the simple fact that in all of those cases
an actual dangerous condition existed that the court attributed constructive knowledge of to the
defendant. See, e.g., Sartori v. JP Morgan Chase Bank, N.A., 127 A.D.3d 1157, 1158 (2d Dept,
2015)(stating plaintiff slipped and fell on a patch of ice that was already on the walkway); Garcia
v. 1265 Morrison, LLC, 122 A.D.3d 512, 512-13 (1st Dept. 2014) (explaining that plaintiff
slipped and fell on water already present on an interior stairway); Yuk Ping Cheng Chan v.
Young T. Lee & Son Realty Corp., 110 A.D.3d 637, 637-38 (1st Dept. 2013) (stating that
defendant may have created the greasy condition of the sidewalk that caused plaintiff to fall);
Milorava v. Lord & Taylor Holdings, LLC, 133 A.D.3d 724, 725 (2nd Dept. 2015) (declaring that
plaintiff alleges she slipped and fell on water that had accumulated on the marble tile floor near
the entrance); Gallagher v. St. Raymond’s Roman Catholic Church, 21 N.Y.2d 554, 558 (1968)
(explaining that plaintiff fell when a dark stairwell created a dangerous condition that defendant
should have ameliorated with lighting); Anderson v. Great E. Mall, L.P., 74A.D.3d 1760, 1761-
62 (4th Dep’t 2010) (imputing construction knowledge of a recurring condition that had occurred
again); David v. N.Y. City Hous. Auth., 284 A.D.2d 169, 169 (1st Dept. 2001) (stating that
plaintiff fell on water collected in a stairwell, a condition that had occurred previously);
Weisenthal v. Pickman, 153 A.D.2d 849, 851 (2nd Dept.. 1989) (holding that constructive
knowledge of the accumulation of debris that caused plaintiff’s fall can be attributed to defendant
as the debris accumulated every week); Santiago v. JP Morgan Chase & Co., 96 A.D.3d 642, 643
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(1st Dept. 2012) (delineating facts that show the dangerous condition, namely a wet floor,
actually existed as plaintiff testified that his clothes were wet after the fall and imputing
constructive knowledge because it had existed before).
Unlike the facts present in the cases above cited by Plaintiff, the allegedly dangerous
condition in the instant case did not exist until Plaintiff created them by tracking moisture in to
the lobby. Thus, Defendants could not have had actual or constructive knowledge of a condition
that did not exist prior to Plaintiff’s creating it.
Defendants are entitled to summary judgment and Plaintiff’s Complaint must be
dismissed in its entirety.
CONCLUSION
For the foregoing reasons, Defendants respectfully submit the Court should grant
summary judgment in favor of Defendants and dismiss the Complaint in its entirety.
Dated: April 22, 2016
New York, New York
s/ Richard B. Cohen
Richard B. Cohen, Esq.
Mukti N. Patel, Esq.
Office: 445 Park Ave., 9th Floor
New York, NY 10022
Mail: 124 West 60th Street, Suite 25E
New York, NY 10023
Tel: (212) 247-6122
Email: richard.cohen@fisherbroyles.com
Attorneys for Defendants,
1350 Broadway LLC and Newmark &
Company Real Estate, Inc. d/b/a Newmark
Grubb Knight Frank
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Preview
FILED: NEW YORK COUNTY CLERK 04/22/2016 05:40 PM INDEX NO. 151722/2014 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/22/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------x MANUEL ALICEA, Index No. 151722/2014 Plaintiff, - against - 1350 BROADWAY LLC and NEWMARK & COMPANY REAL ESTATE, INC. d/b/a NEWMARK GRUBB KNIGHT FRANK, Defendants. ---------------------------------------------------------------x REPLY MEMORANDUM OF LAW OF DEFENDANTS 1350 BROADWAY LLC AND NEWMARK & COMPANY REAL ESTATE, INC. d/b/a NEWMARK GRUBB KNIGHT FRANK IN FURTHER SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT ________________________________________________________________________________ Richard B. Cohen, Esq. Mukti N. Patel, Esq. Office: 445 Park Ave., 9th Floor New York, NY 10022 Mail: 124 West 60th Street, Suite 25E New York, NY 10023 Tel: (212) 247-6122 Email: richard.cohen@fisherbroyles.com Attorneys for Defendants, 1350 Broadway LLC and Newmark & Company Real Estate, Inc. d/b/a Newmark Grubb Knight Frank 1 of 11 Defendants, 1350 Broadway LLC and Newmark & Company Real Estate, Inc. d/b/a Newmark Grubb Knight Frank (collectively “Newmark”), by their attorneys FisherBroyles LLP, respectfully submits this reply memorandum of law in further support of their motion for summary judgment, pursuant to CPLR section 3212. ADDITIONAL BACKGROUND Defendants were previously represented by other counsel until November 10, 2014, when a consent for change of counsel was filed. The prior compliance order dated July 31, 2014 was entered when prior counsel represented Newmark. The subsequent compliance conference orders dated December 4, 2014, March 26, 2015, June 18, 2015, and October 8, 2015 do not address the issue of when summary judgment motions are to be filed. (Exhibits A, B, C, and D). 1 2 of 11 ARGUMENT I. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IS TIMELY AND APPROPRIATELY CONSIDERED BY THE COURT. Plaintiff’s main contention in his opposing papers is that this motion is untimely under the Preliminary Conference Order, dated July 31, 2014, even though Plaintiff acknowledges that its was timely filed under CPLR Rule 3212, having been filed within 120 days of the filing of the Note of Issue. (The initial order required any dispositive motions to be made within 60 days of filing of the Note of Issue). Plaintiff’scontention is meritless and exalts form over substance. The subsequent compliance and status conference orders dated December 4, 2014, March 26, 2015, June 18, 2015, and October 8, 2015 all modified and totally changed the provisions of the initial order, updating and superseding virtually all of the significant dates in this litigation and thereby rendering the entire reason and purpose of the dates in that initial order moot. Indeed, the initial order provided that plaintiff had to file the Note of Issue by April 3, 2015 – 6 months before the date it was actually filed by Plaintiff – which would have made it untimely under the initial order. More importantly, there is not a hint from Plaintiff as to how he has been prejudiced by the filing of this motion before the expiration of 120 days from filing of the Note of Issue, as per CPLR Rule 3212, which is the touchstone of any consideration of a claim of untimeliness. This case is not even close to being on “the eve of trial” -- the case has not yet reached the trial calendar, and in fact, after one court-ordered Early Settlement Conference conducted on March 9, 2016, this case has been scheduled for another such court conference to be conducted on June 14, 2016 – demonstrating that plaintiff has not, and cannot, demonstrate any prejudice by the filing of this motion. 2 3 of 11 As explained in Brill v. City of New York, 2 N.Y.3d 648 (2004), the genesis of CPLR Rule 3212 was to prevent “[e]leventh-hour summary judgment motion, sometimes used as a dilatory tactic, [that] left inadequate time for reply or proper court consideration, and prejudiced litigants who had already devoted substantial resources to readying themselves for trial.” Id. at 651. The purpose was to set an outside limit for when summary judgment motions could be filed; i.e., no more than one hundred twenty (120) days after the note of issue was filed. Id. In Brill, the City waited more than a year after the trial calendar papers were filed and well past the 120-day limit specified in CPLR Rule 3212(a) before moving summary judgment and provided no explanation for doing so. Id. at 650. The only justification for the late filing of the summary judgment motion was that the motion was meritorious. Id. at 650, 653. In light of the egregious delay, the Court of Appeals held that the summary judgment motion should not have been considered. Id. at 650. In Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75 (1st Dept. 2013), the Court further explained that it was not holding that an untimely summary judgment motion must automatically not be considered, but rather that when a motion is filed beyond the limit set by CPLR Rule 3212(a) the party must show good cause for the delay. Id. at 86. In Kershaw, the summary judgment motion was filed almost two months after the deadline set by the Court for the filing of such motions and disingenuously labeled a cross motion. Id. at 80. The Court rejected the justification that the motion should be permitted as itwas simply a cross motion because the Court found that the motion was not, in fact, a cross motion. Id. at 87. The “cross motion” addressed different issues that addressed in the original summary judgment motion and was returnable after the return date of the original motion. Id. at 88. Permitting the motion to proceed would work an injustice as if it had been labeled correctly it would not be considered 3 4 of 11 without an explanation for the delay. Id. Defendants here have exhibited no “egregious” or disingenuous conduct to warrant disregarding their motion for summary judgment. Defendants did not, of course, act in intentional disregard of the initial order, but simply believed that, as the original order had been superseded by the many subsequent orders that did not set a deadline for filing dispositive motions, the operative time for such filing was the one hundred twenty (120) days provided for by the statute. Defendants did not address the issue of good cause in their moving papers because they believed, in good faith, that the motion was timely. II. DEFENDANTS HAVE ESTABLISHED A PRIMA FACIE CASE THAT PLAINTIFF HAS FAILED TO REBUT ENTITLING THEM TO SUMMARY JUDGMENT. A. Defendants Rely on Plaintiff’s Version of the Facts as on a Motion for Summary Judgment the Court Must Consider Disputed Facts in a Light Most Favorable to the Nonmoving Pary. “Summary judgment is a drastic remedy which shall be granted only when the movant has established that there are no triable issues of fact.” Parry v. County of Onondaga, 906 N.Y.S.2d 774 (N.Y. Sup. Ct. 2009). “Once the movant has established a prima facie entitlement to judgment as a matter of law, the party opposing the motion must come forward with proof, in evidentiary form, establishing the existence of triable issues of fact or must demonstrate an acceptable excuse for its failure to do so.” Id. As noted in the moving brief, “the court must view the evidence in the light most favorable to the non-moving party and must give the non-moving party the benefit of all reasonable inferences which can be drawn from the evidence” and “determine if triable issues of fact exist.” Id. “[T]he role of the Court is . . . not to delve into or resolve issues of credibility.” Delgado v. 313-315 W. 125th St. LLC, 2015 N.Y. Misc. LEXIS 4166 (N.Y. Sup. Ct. Oct. 1, 2015). However, mere conclusions of law or fact are insufficient to defeat a motion for summary 4 5 of 11 judgment. Parry, 906 N.Y.S.2d at 774. Thus, for purposes of this motion only, Defendants have, as they must, accepted as true the facts as recited by Plaintiff, namely that there were no mats present in the lobby during the alleged incident (among other things). Indeed, Defendants’ moving papers did not discuss the issue of mats because Defendants contend that this issue is not material or dispositive on the motion, and that summary judgment must be granted irrespective of whether mats were down or not. Defendants’ silence as to this issue should in no way be deemed or construed to be a representation that Plaintiff is correct on the issue.1 However, even if for purposes of summary judgment Plaintiff’s position on this issue is accepted as true, Plaintiff still cannot establish any actual or constructive notice of an actual, as opposed to theoretical, dangerous condition that would have imposed any affirmative duty upon Defendants. Plaintiff’s case seems to rely almost entirely on an alleged “slip test” on the subject lobby floor conducted by his alleged expert almost nine months after the alleged incident. Without ahy support in fact or logic, Plaintiff extrapolates backwards from this, and concludes that an allegedly slippery floor on October 30, 2013 meant that the floor was just as slippery nine months earlier – February 2, 2013. This testimony and untimely slip test is not probative of any fact in issue, is irrelevant and should be disregarded.2 However, solely for purposes of this motion, even assuming Plaintiff’s slip test has any 1 To the contrary, should this matter proceed to trial, Defendants intend to prove that when plaintiff alleges the incident occurred, mats were indeed down at the lobby entrances. This is in conformance with the many statements made by Defendants’ witnesses -- as quoted by plaintiff in his opposing papers - that mats were always down on the lobby entrance floor during the winter months, including February, when plaintiff alleges the incident occurred. . 2 Again, should a trial be necessary, Defendants fully intend to challenge that probative value of a test conducted nine months after the alleged incident when the floor had been subjected to months of normal wear and tear. Further, Defendants will proffer their own slip test conducted prior to the incident which shows that the floor was within acceptable “slip” standards. 5 6 of 11 probative value, constructive knowledge of the alleged dangerous condition of the floor at the time of the incident cannot be imputed to Defendants when it was Plaintiff himself who admittedly tracked the moisture into the lobby and claims to have immediately fallen. B. Plaintiff Himself Testified That the Lobby Floor Was Clean and Dry Obviating Any Need For Defendants to Rely On Any Evidence of the Floor Being Clean or Inspected. Plaintiff’s i substantive response to this summary judgment motion is simply that Defendants have not made a prima facie showing that they did not have constructive notice of the alleged dangerous condition because Defendants failed to offer evidence of when the area was last cleaned or inspected. Once again, Plaintiff’s argument is immaterial and irrelevant. As Defendants pointed out in their moving brief, Plaintiff testified that the floor inside the lobby was clean and dry when he entered the building. Thus, there is no need for Defendants to proffer evidence as to the last time that the floor was cleaned or inspected. Plaintiff himself acknowledges that the condition of the floor when he entered the building was clean and dry, i.e., not dangerous. Thus, Plaintiff’s own testimony conclusively establishes Defendants’ prima facie case that it did not have constructive knowledge of any allegedly dangerous condition. C. Plaintiff Mischaracterizes Deposition Testimony. To support his claim and in attempt to defeat this summary judgment motion, Plaintiff cherry picks disembodied quotes from the deposition testimony of Andy Meirama, the long-time chief building engineer, to make it appear that he did not know whether or not mats were down on the lobby floor entrance on the night of Plaintiff’s alleged incident. This is simply disingenuous (as well as, as stated before, immaterial). Meirama clearly testified that during the fall/winter months, from September to April or May (Meirama Dep. at p. 71, lines 2-25) when “the atmosphere conditions outside are more prone to be wet” (Meirama Dep. at p. 72, lines 5-6), 6 7 of 11 “the end mats are there all the time.” (Meirama Dep. at p. 71, lines 11-12). He emphasized that during the winter season – including early February - the end mats are down “24-7.” (Meirama dep. at p. 72, lines 7-12). That Meirama could not recall the particular night at issue is hardly surprising or material given the long period of time that had elapsed from the alleged incident to the time that itwas brought to the attention of Defendants. While Defendants are not taking a position on the issue of the mats on this motion, it should be noted that Meirama did not testify as Plaintiff would have liked. Moreover, and more significantly, Plaintiff omits to mention Meirama’s uncontradicted testimony that “when the mats are down caution signs are up” by the entrance doors, 24-7 in the winter months – including February 2013. (Meirama Dep. at p. 73, lines 3-14). That is, Meirama stated that metal caution signs were placed down at the lobby entrances during the winter months. Plaintiff himself placed into the record on this motion the deposition testimony of Meirama, and as the party opposing summary judgment, would reasonably have been expected to raise as many issues of material fact as possible. Therefore his failure to deny – or even mention -- the caution signs mentioned noted by Meirama is tantamount to an admission that they were, in fact, placed at the doors on the night of the alleged incident. (For that matter, since Plaintiff was well acquainted with the building and its lobby, having repeatedly made his work rounds there, his failure to deny Meirama’s testimony that mats were always down during the winter months is also tantamount to an admission). 7 8 of 11 D. The Case Law Cited by Plaintiff Does Not Support Plaintiff’s Proposition that Defendants Had Constructive Knowledge of the Alleged Dangerous Condition. Defendants cannot be imputed with constructive knowledge of a dangerous condition that simply did not exist until the moment that Plaintiff walked into the building. For constructive notice of a dangerous condition to exist, the condition must be “visible and apparent and . . . must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.” Gibbs v. Port Auth. of New York, 17 A.D.3d 252, 255 (1st Dept. 2005) (quoting Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837 (1986)). A “general awareness” a dangerous condition may be present is insufficient. Wise-Love v. 60 Broad St. LLC, 75 A.D.3d 487 (1st Dept. 2010); Mormile v. Jamestown Mgt. Corp., 71 A.D.3d 748, 749 (2d Dept, 2010). A “general awareness” is exactly the basis upon which Plaintiff rests his claim. Plaintiff attempts to assign constructive knowledge to Defendants because a weather forecast indicated that it might snow the next day and the floor may become wet. To be clear, the dangerous condition here can only be a wet floor in the building, not a weather forecast of possible inclement weather that had yet to materialize. This wet floor did not exist until Plaintiff walked in the door tracking the moisture in. See Gibbs, supra, 17 A.D.3d at 255 (holding that there can be no inference of constructive knowledge where evidence strongly suggested that any water had been tracked in by individual immediately preceding the plaintiff). At best, arguably, viewing Plaintiff’s version of the facts in alight most favorable to him, the potential for a dangerous conditions existed only when it began to snow. But even accepting this as true, Plaintiff testified that it began to snow only an hour before he arrived at the building, late on a Saturday night when the building was closed to the general public, and the only person in the building was the security guard. As such, the alleged dangerous condition did not exist for 8 9 of 11 a sufficient period of time or for any period of time that constructive knowledge of it can be attributed to Defendants. Ford v. Citibank, N.A., 11 A.D.3d 508-509 (2d Dept. 2004) (indicating that an inference of constructive knowledge can only exist where there is evidence of how long a “specific wet condition existed”). The cased cited by Plaintiff are distinguishable by the simple fact that in all of those cases an actual dangerous condition existed that the court attributed constructive knowledge of to the defendant. See, e.g., Sartori v. JP Morgan Chase Bank, N.A., 127 A.D.3d 1157, 1158 (2d Dept, 2015)(stating plaintiff slipped and fell on a patch of ice that was already on the walkway); Garcia v. 1265 Morrison, LLC, 122 A.D.3d 512, 512-13 (1st Dept. 2014) (explaining that plaintiff slipped and fell on water already present on an interior stairway); Yuk Ping Cheng Chan v. Young T. Lee & Son Realty Corp., 110 A.D.3d 637, 637-38 (1st Dept. 2013) (stating that defendant may have created the greasy condition of the sidewalk that caused plaintiff to fall); Milorava v. Lord & Taylor Holdings, LLC, 133 A.D.3d 724, 725 (2nd Dept. 2015) (declaring that plaintiff alleges she slipped and fell on water that had accumulated on the marble tile floor near the entrance); Gallagher v. St. Raymond’s Roman Catholic Church, 21 N.Y.2d 554, 558 (1968) (explaining that plaintiff fell when a dark stairwell created a dangerous condition that defendant should have ameliorated with lighting); Anderson v. Great E. Mall, L.P., 74A.D.3d 1760, 1761- 62 (4th Dep’t 2010) (imputing construction knowledge of a recurring condition that had occurred again); David v. N.Y. City Hous. Auth., 284 A.D.2d 169, 169 (1st Dept. 2001) (stating that plaintiff fell on water collected in a stairwell, a condition that had occurred previously); Weisenthal v. Pickman, 153 A.D.2d 849, 851 (2nd Dept.. 1989) (holding that constructive knowledge of the accumulation of debris that caused plaintiff’s fall can be attributed to defendant as the debris accumulated every week); Santiago v. JP Morgan Chase & Co., 96 A.D.3d 642, 643 9 10 of 11 (1st Dept. 2012) (delineating facts that show the dangerous condition, namely a wet floor, actually existed as plaintiff testified that his clothes were wet after the fall and imputing constructive knowledge because it had existed before). Unlike the facts present in the cases above cited by Plaintiff, the allegedly dangerous condition in the instant case did not exist until Plaintiff created them by tracking moisture in to the lobby. Thus, Defendants could not have had actual or constructive knowledge of a condition that did not exist prior to Plaintiff’s creating it. Defendants are entitled to summary judgment and Plaintiff’s Complaint must be dismissed in its entirety. CONCLUSION For the foregoing reasons, Defendants respectfully submit the Court should grant summary judgment in favor of Defendants and dismiss the Complaint in its entirety. Dated: April 22, 2016 New York, New York s/ Richard B. Cohen Richard B. Cohen, Esq. Mukti N. Patel, Esq. Office: 445 Park Ave., 9th Floor New York, NY 10022 Mail: 124 West 60th Street, Suite 25E New York, NY 10023 Tel: (212) 247-6122 Email: richard.cohen@fisherbroyles.com Attorneys for Defendants, 1350 Broadway LLC and Newmark & Company Real Estate, Inc. d/b/a Newmark Grubb Knight Frank 10 11 of 11