| Pomahac v TrizecHahn 1065 Ave. of Ams., LLC |
| 2009 NY Slip Op 06223 [65 AD3d 462] |
| August 18, 2009 |
| Appellate Division, First Department |
| Bruce Pomahac, Respondent, v TrizecHahn 1065 Avenueof the Americas, LLC, et al., Appellants, et al., Defendants. (And a Third-PartyAction.) |
—[*1] Jeffrey Samel & Partners, New York (Judah Z. Cohen of counsel), for American BuildingMaintenance Co. of New York, appellant. Friedman, Friedman, Chiaravalloti & Giannini, New York (A. Joseph Giannini of counsel),for respondent.
Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered September 17,2007, which, insofar as it denied defendants-appellants' motions for summary judgment,reversed, on the law, without costs, the motions granted and the complaint and all cross claims asagainst them dismissed. The Clerk is directed to enter judgment accordingly.
The accident giving rise to this action occurred at approximately 9:00 a.m. on October 29,2003 in the lobby of a building managed by defendant TrizecHahn and maintained by defendantABM. Plaintiff testified at his deposition that he opened the exterior door to the building, walkedthrough a small vestibule, then passed through the interior door leading to the lobby. A matcovered the vestibule floor and a three-to-five-foot long mat was placed on the lobby floorimmediately past the interior door. The terrazzo lobby floor appeared to plaintiff to be wet,which he attributed to tracked-in rainwater from a storm that produced over an inch and a half ofrain. The storm had begun several hours before the accident and ended either shortly before orafter it. As he entered the lobby, plaintiff noticed a yellow "caution" warning sign approximately15 feet away and a man mopping the floor near the sign. As he walked past the man mopping thefloor, plaintiff slipped and fell; there was no mat where plaintiff fell. A security guardmonitoring the lobby testified at his deposition that someone spilled a cup of coffee in the areawhere plaintiff fell only moments before the accident and that the man mopping the floor wascleaning that spill at the time of the accident.[*2]
Plaintiff commenced this action against, among others,TrizecHahn and ABM, claiming that they failed to maintain the lobby floor in a reasonably safecondition. The principal theory of plaintiff's case is that defendants failed to place additionalmats in the lobby, including a mat covering the spot where he fell. Although plaintiff asserts thathis fall was precipitated by tracked-in rainwater, he claims that the source of the moisture on thefloor where he fell is irrelevant. He reasons that if additional mats had been placed in the lobby,the moisture, whatever its source, would have been absorbed. ABM moved for summaryjudgment dismissing the complaint and TrizecHahn's cross claims against it, as well asTrizecHahn's third-party action against it. TrizecHahn cross-moved for summary judgmentdismissing the complaint and ABM's cross claims against it. After initially granting thesemotions, Supreme Court granted plaintiff's motion to reargue those motions and, on reargument,the court denied the motions of ABM and TrizecHahn.
ABM and TrizecHahn each made a prima facie showing of entitlement to judgment as amatter of law on the ground that, regardless of the source of the moisture, they took reasonableprecautions to remedy the wet condition on the lobby floor. The undisputed evidencedemonstrates that two mats were placed in the entranceway of the building, one in the vestibuleand one on the lobby floor immediately past the threshold of the interior door; at least oneyellow "caution" sign was placed in the lobby; and an ABM employee had mopped the floorseveral times before the accident occurred and was mopping it at the time of the accident. Thus,if the source of the moisture was tracked-in rainwater, defendants took reasonable measures toremedy it (see Amsel v New YorkConvention Ctr. Operating Corp., 60 AD3d 534 [2009]; Ford v Citibank, N.A., 11 AD3d508 [2004]; Sook Ja Lee v Yi Mei Bakery Corp., 305 AD2d 579 [2003]; see also Gale v BP/CG Ctr. I LLC, 49AD3d 454 [2008]).[FN*]Similarly, if the source of the moisture was spilled coffee, defendants acted reasonably.According to the security guard who was stationed in the lobby, the coffee was spilled momentsbefore the accident in the area where plaintiff fell. Almost immediately after the coffee wasspilled, an employee of ABM placed a yellow "caution" sign in the area of the spill and beganmopping the area.
In opposition, plaintiff asserts that ABM and TrizecHahn failed to follow a practice they hadestablished in dealing with tracked-in rainwater, a practice that plaintiff claims could haveprevented the accident. Specifically, plaintiff demonstrated that defendants had a practice ofplacing three mats on the lobby floor when it was raining; these mats would be in addition to themat in the vestibule, which was always present. Two of the mats would be placed side-by-sideon the floor immediately past the interior door and the third mat would be placed at the end ofthe first two mats. Testimony regarding the length of the mats varied but demonstrated that eachmat was between 10 and 20 feet long. Thus, while we cannot know how far into the lobby themats would run if configured in the manner outlined above, we do know that the mats would runat [*3]least 20 feet into the lobby if so configured. Becauseplaintiff testified that he fell approximately 15 feet from the interior door, the mats, if placed inaccordance with defendants' usual practice, may have covered the area in which the accidentoccurred.
Contrary to plaintiff's contention, that defendants had a practice of placing a certain numberof mats in a particular fashion in inclement weather and failed to adhere to that practice at thetime of the accident is insufficient to raise a triable issue of fact with respect to defendants'negligence. A defendant's failure to adhere to its own internal guideline or policy may be someevidence of negligence (see 1A NY PJI3d 2:16, at 254 [2009]). But where the internalguideline or policy requires a standard that transcends the standard required by the duty ofreasonable care, a defendant's breach of the guideline or policy cannot be consideredevidence of negligence (Gilson vMetropolitan Opera, 5 NY3d 574, 577 [2005], citing Sherman v Robinson, 80NY2d 483, 489 n 3 [1992]; Lesser v Manhattan & Bronx Surface Tr. Operating Auth.,157 AD2d 352, 356 [1990] ["While internal operating rules may provide some evidence ofwhether reasonable care has been taken and thus some evidence of the defendant's negligence orabsence thereof, such rules must be excluded, as a matter of law, if they require a standard ofcare which transcends the area of reasonable care"], affd sub nom. Fishman v Manhattan &Bronx Surface Tr. Operating Auth., 79 NY2d 1031 [1992]). The reasonable care standarddoes not require a defendant to cover all of its floors with mats to prevent a person from fallingon tracked-in moisture (see Negron v St. Patrick's Nursing Home, 248 AD2d 687 [1998];Kovelsky v City Univ. of N.Y., 221 AD2d 234 [1995]; see also Keum Choi vOlympia & York Water St. Co., 278 AD2d 106 [2000]); nor does it require a defendant toplace a particular number of mats in particular places (see generally Amsel,supra; Ford, supra; Sook Ja Lee, supra). Instead, all of thecircumstances regarding a defendant's maintenance efforts must be scrutinized in ascertainingwhether the defendant exercised reasonable care in remedying a dangerous condition. Thus,defendants' internal policy of placing three mats in a particular configuration and their failure tofollow that voluntarily-adopted policy cannot serve as a basis of liability (see Newsome vCservak, 130 AD2d 637 [1987]). We note as well that plaintiff's position relies on theerroneous proposition that defendants could satisfy their duty of reasonable care only byadhering to their prior practice, not by promptly mopping up the moisture.
Nor did the affidavit of plaintiff's engineer raise a triable issue of fact with respect todefendants' liability. The engineer stated that defendants should have placed a mat in the areawhere plaintiff fell because the terrazzo floor, when wet, is extremely slippery. The engineerbased this opinion on, among other things, a reading of the coefficient of friction of the lobbyfloor taken several months after the accident. The engineer's affidavit fails to raise a triable issueof fact because his assertion that a mat was required to be placed in the area where plaintiff fellis unsupported by any generally accepted engineering standard or practice (Jones v City of New York, 32 AD3d706 [2006]). Moreover, the engineer's opinion is entitled to no weight because he did notidentify the basis for the coefficient of friction value he utilized as a standard and did notdemonstrate that, at the time he measured the coefficient, the lobby floor was in the samecondition as it was on the date of the accident or a substantially similar condition (see Jenkins v New York City Hous.Auth., 11 AD3d 358, 360 [2004]).
The dissent emphasizes the issue of whether defendants had notice of the condition of thefloor, finding a triable issue of fact on this score. The issue of notice, however, is irrelevantbecause defendants do not assert that they are entitled to summary judgment on the ground thatas a matter of law they did not have notice of the condition of the floor. TrizecHahn argues that[*4]it is entitled to summary judgment because it took reasonableprecautions to remedy the wet condition on the lobby floor. ABM makes that same argument andadditionally contends that it is entitled to summary judgment because it owed no duty of care toplaintiff.
As noted above, it is well established both that a defendant's breach of its own internal policycannot be considered evidence of negligence where that policy requires a standard thattranscends the standard required by the duty of reasonable care, and that the reasonable carestandard does not require a defendant to cover all of its floors with mats to prevent a person fromfalling on moisture. The dissent, however, disregards both principles. Thus, even thoughdefendants (1) provided two mats in the entranceway, i.e., one in the vestibule and one in thelobby—not one as suggested by the dissent—(2) placed at least one yellow"caution" sign, situated in the immediate area of plaintiff's fall, in the lobby, and (3) assigned aworker to mop the lobby periodically, including at the time of plaintiff's fall, the dissentnonetheless concludes that a triable issue of fact exists with respect to whether defendants shouldhave placed more mats on the floor. The dissent cites no authority supporting its position.
The dissent dismisses as dicta the portions of the holdings in Amsel (supra),Ford (supra), and Gale (supra) that support defendants' positionthat as a matter of law they took reasonable measures to remedy the moist condition of the floor.The dissent reasons that in each of these cases the Court also concluded that as a matter of lawthe defendant did not have notice of the condition. In each case, however, the Court addressedfirst the issue of whether the defendant was entitled to judgment as a matter of lawbecause it had taken reasonable measures to remedy the condition. Accordingly, if any portion ofthe discussion in these cases should be dismissed as dicta, the more reasonable conclusion is toregard the discussion of the issue of notice as dicta (Amsel, 60 AD3d at 535 ["Defendantestablished prima facie its entitlement to summary judgment by demonstrating that it had rainedearlier in the day and was raining at the time of plaintiff's accident and that defendant had takenreasonable precautions to prevent the tracked-in water from accumulating by placing mats on thelobby floor and mopping the floor throughout the day and had neither actual nor constructivenotice of the particular wet condition that allegedly caused the accident"]; Ford, 11AD3d at 508-509 ["In the instant case, the defendant Citibank . . . established itsprima facie entitlement to summary judgment as a matter of law by submitting evidence that ittook reasonable precautions to remedy wet conditions on its premises caused by a lengthyrainstorm. In this regard, Citibank provided two mats and mopped its lobby floor within one hourprior to the time that the plaintiff allegedly slipped and fell. There was no evidence that Citibankcreated the wet condition, and it was not obligated to provide a constant remedy to the problemof water being tracked into a building in rainy weather. Moreover, Citibank demonstrated that ithad no actual notice of the particular accumulation of water on the floor which caused theplaintiff to fall, and in the absence of proof as to how long this specific wet condition existed,there is no evidence to permit an inference that Citibank had constructive notice of thecondition" (internal quotation marks and citations omitted)]; Gale, 49 AD3d at 454["Plaintiff offered no evidence that defendant owners failed to take reasonable precautions toremedy wet conditions in the building at the time of the accident. After he stepped off the matsthat had been provided, plaintiff slipped in an area that had been mopped less than 15 minutesearlier. During that 15-minute period, several people had walked through the area withoutincident, in full view of building employees. Therefore, plaintiff cannot show that the allegedlydangerous wet condition was visible and apparent for a sufficient length of time prior to theaccident to permit defendants' employees to discover and remedy it" (internal quotation marks[*5]and citations omitted)]).
In light of our conclusion that TrizecHahn and ABM are entitled to summary judgment onthe ground that they acted reasonably as a matter of law, we need not and do not pass on themerits of their remaining contentions. Concur—Andrias, J.P., Friedman and McGuire, JJ.
Moskowitz, J., dissents in a memorandum as follows: I dissent because the majorityunjustifiably takes this case away from the jury. Plaintiff has raised an issue of fact as to whetherappellants failed to use reasonable care to remedy the slippery wet floor, of which they hadnotice, by not placing a sufficient number of mats on the floor on the day of the accident.
Plaintiff slipped and fell on a wet terrazzo floor in the entry corridor of a building at about9:00 a.m. Defendant TrizecHahn 1065 Avenue of the Americas, LLC (TrizecHahn) was theproperty manager which, it is undisputed, contracted for defendant American BuildingMaintenance Co. (ABM) to perform building maintenance.
It had been raining just before the accident. Plaintiff testified that it was no longer rainingwhen he entered the building. As he entered the corridor, there was one mat extending no morethan five feet, a yellow warning sign on the floor 12 to 15 feet away and a man mopping nearby.As plaintiff walked past the man about a third of the way into the 50-foot-long corridor, orapproximately 15 to 20 feet from the entrance, he slipped and fell.
Frank DeSilvio, ABM's on-site foreman, testified that when it rained it was the building'spractice to place two mats side by side extending 12 to 20 feet into the lobby and then a third matof the same size in the center extending 12 to 20 feet further.
Nonparty security supervisor Errol Marshall and another individual were the ones whowould place mats on the floor. It was Marshall's understanding that, on the day of the accident,they had used all the available mats. Yet, he testified, he had seen other persons slipping on thefloor that very morning and, immediately before plaintiff fell, he had called for more mats andfor personnel to mop. This contradicted plaintiff's testimony as well as Marshall's own claimedunderstanding that the building had used all available mats. Moreover, defendants' surveillancetape showing only one mat in the corridor corroborates plaintiff's version.
Marshall testified that the corridor had been polished that week and that the substance usedto polish the floor makes it slippery "when it gets wet." He had also personally investigated atleast one other incident several months earlier when a Ms. Lauck fell on the wet floor in thecorridor at approximately 8:30 a.m. and was aware of other unspecified incidents of peopleslipping on the floor after it had rained.
While I agree with the majority that defendants were not required to cover the entire floorwith mats, or continuously mop, there are issues of fact concerning whether, under the weatherconditions during the morning of October 29, 2003, ABM placed enough mats on the terrazzofloor.
Property owners and those to whom they delegate their responsibility have a duty tomaintain their property in a reasonably safe condition under the circumstances (Peralta vHenriquez, 100 NY2d 139, 144-145 [2003]; Basso v Miller, 40 NY2d 233, 241[1976]). Here, the evidence raises issues of fact as to whether defendants took reasonableprecautions, even [*6]though they were not required to cover allof the floor with mats or to continuously mop up all moisture from tracked-in rainwater (seeKovelsky v City Univ. of N.Y., 221 AD2d 234 [1995]).
First, it is not disputed that defendants were on constructive notice of the condition. Whilethe inherently slippery nature of a floor is insufficient to impose liability (see Eichelbaum v Douglas Elliman,LLC, 52 AD3d 210 [2008];DeMartini v Trump 767 5th Ave., LLC, 41 AD3d 181 [2007]; Sarmiento v C & E Assoc., 40 AD3d524, 527 [2007]), including terrazzo floors as here (see Duffy v Universal MaintenanceCorp., 227 AD2d 238 [1996]), plaintiff's theory of liability is that the floor on which he fellis slippery when wet. Although Marshall notified the building employees essentiallycontemporaneously with plaintiff's accident that people were slipping on the wet floor (seeKovelsky, supra), he related prior incidents of people falling on the same floor whenit was wet. Defendants were thus aware of a recurring dangerous condition (cf. White v New York City Hous.Auth., 55 AD3d 400 [2008]; Keum Choi v Olympia & York Water St. Co., 278AD2d 106 [2000]).
Moreover, there is at least a question of fact as to whether defendants had sufficient time toremedy the problem, because the rain had already stopped (cf. Solazzo v New York City Tr. Auth., 6 NY3d 734 [2005]).
Amsel v New York Convention Ctr.Operating Corp. (60 AD3d 534 [2009]) and other cases relied on by the majority aredistinguishable. Amsel does not indicate the number of mats that the defendant had putdown because of the rain, it was still raining at the time of the accident, and the defendants hadneither actual nor constructive notice of the particular wet condition that allegedly caused theaccident.
Notice was similarly lacking in Ford v Citibank, N.A. (11 AD3d 508 [2004]). In Ford,where the Second Department held that the defendant had taken reasonable precautions byproviding two mats and mopping its lobby floor one hour before the plaintiff fell, there was noevidence to permit an inference that the defendant had constructive notice of the condition andthe decision does not indicate either the size of the lobby or the type of flooring. In view of thelack of notice, the ruling as to the reasonableness of the precautions was dicta. In Gale v BP/CG Ctr. I LLC (49 AD3d454 [2008]), there was a lack of notice where the plaintiff slipped in an area that had beenmopped less than 15 minutes earlier and, unlike here, during that 15 minute period severalpeople had walked through the area without incident in full view of building employees. Asnoted, in Keum Choi (supra), there was also a lack of notice of a dangerouscondition.
Here, the corridor where plaintiff slipped and fell was 50 feet long, and there is evidence thatthe only mat in place extended perhaps five feet into it, covering only about one tenth of itslength. There is therefore a question of fact as to whether this, the mopping and the caution signconstituted reasonable precautions under the circumstances.
Finally, ABM failed to support its contention that it did not owe plaintiff a duty of careunder its contract with TrizecHahn (see generally Espinal v Melville Snow Contrs., 98NY2d 136, 140 [2002]). By failing to produce its maintenance contract, it was unable to showthat its contractual obligation did not entirely displace property manager's owner TrizecHahn'sduty to safely maintain the premises (see Mastroddi v WDG Dutchess Assoc. Ltd. Partnership, 52 AD3d341, 342 [2008]). [See 2007 NY Slip Op 32865(U).]
Footnote *: Defendants submitted evidenceindicating that additional mats were placed in the lobby at the time of the accident, as well asadditional yellow "caution" signs. However, that evidence is not consistent with plaintiff'stestimony. Because ABM and TrizecHahn sought summary judgment against plaintiff, we viewthe evidence in the light most favorable to plaintiff and accept as true plaintiff's testimony.