| Ingram v Long Is. Coll. Hosp. |
| 2012 NY Slip Op 08490 [101 AD3d 814] |
| December 12, 2012 |
| Appellate Division, Second Department |
| Annie Ingram, Respondent, v Long Island CollegeHospital, Defendant/Third-Party Plaintiff-Appellant-Respondent. Fresenius Medical Care,Third-Party Defendant-Respondent-Appellant, et al., Third-PartyDefendant. |
—[*1] Christopher P. Di Giulio, P.C., New York, N.Y. (William Thymius of counsel), forthird-party defendant-respondent-appellant. Joseph B. Strassman, Huntington, N.Y., for plaintiff-respondent.
In an action to recover damages for personal injuries, the defendant/third-party plaintiffappeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County(Battaglia J.), dated June 9, 2011, as denied those branches of its cross motion which were forsummary judgment dismissing the complaint and on its third-party causes of action forcontractual and common-law indemnification, and the third-party defendant Fresenius MedicalCare cross-appeals, as limited by its brief, from so much of the same order as denied thosebranches of its motion which were for summary judgment dismissing the complaint and thethird-party complaint insofar as asserted against it.
Ordered that the order is reversed, on the law, with one bill of costs to thedefendant/third-party plaintiff and the third-party defendant Fresenius Medical Care, payable bythe plaintiff, those branches of the cross motion of the defendant/third-party plaintiff and thethird-party defendant Fresenius Medical Care, which were for summary judgment dismissing thecomplaint are granted, that branch of the cross motion of the defendant/third-party plaintiff whichwas for summary judgment on its third-party causes of action for contractual and common-lawindemnification is denied as academic, and that branch of the motion of the third-party defendantFresenius Medical Care which was for summary judgment dismissing the third-party complaint isgranted.
The plaintiff allegedly tripped and fell over a piece of plastic used for bundling bed sheetswhile she was walking to her chair for treatment in the dialysis unit of the defendant/third-partyplaintiff, Long Island College Hospital (hereinafter LICH). Thereafter, the plaintiff commencedthis action against LICH to recover damages for personal injuries, and LICH [*2]commenced a third-party action against, among others, FreseniusMedical Care (hereinafter FMC). Subsequently, FMC moved, inter alia, for summary judgmentdismissing the complaint and the third-party complaint insofar as asserted against it, and LICHcross-moved, inter alia, for summary judgment dismissing the complaint and on its third-partycauses of action for contractual and common-law indemnification.
In a trip-and-fall case, a plaintiff must demonstrate that the defendant had actual orconstructive notice of the allegedly dangerous condition that caused the fall, or created thatcondition (see Teplin v Bonwit Inn,64 AD3d 642, 642-643 [2009]; Brown v Outback Steakhouse, 39 AD3d 450 [2007]).
LICH and FMC satisfied their respective prima facie burdens of establishing theirentitlement to summary judgment dismissing the complaint. They established that LICH did notcreate the allegedly dangerous condition by demonstrating that the employees of New YorkDialysis Services, Inc., a nonparty, removed the plastic from the sheets (see Ameneiros v Seaside Co., LLC, 81AD3d 760, 761 [2011]). Further, it was demonstrated that LICH did not have actual orconstructive notice of the alleged dangerous condition. Through the deposition testimony ofRamesh Deonarain, LICH's housekeeper, and that of Alan Zwerin, FMC's area manager, it wasdemonstrated that LICH had not received any complaints about plastic on the floor and had neverobserved that condition in the past. The unit in which the plaintiff received treatment was cleanedovernight, and she was one of the first patients in the unit at 6:00 a.m. on the day of her accident(see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Neitherthe plaintiff nor the nonparty witness, Alice Moye, observed any plastic on the floor before theplaintiff's accident (see Bravo v 564Seneca Ave. Corp., 83 AD3d 633, 634 [2011]; Crapanzano v Balkon Realty Co., 68 AD3d 1042, 1043 [2009];Doherty v Great Atl. & Pac. Tea Co., 265 AD2d 447, 448 [1999]). It was alsodemonstrated that LICH did not have actual knowledge of an ongoing and recurring dangerouscondition such that it should be charged with constructive notice of each specific reoccurrence ofthat condition (see Brown v LindenPlaza Hous. Co., Inc., 36 AD3d 742 [2007]). Although the plaintiff previously hadobserved plastic on the floor, she admitted that she had never complained about it, and whileMoye had written a letter complaining about the general condition of the unit, she nevermentioned the specific condition at issue (see Anderson v Central Val. Realty Co., 300AD2d 422, 423 [2002]). In opposition to this prima facie showing, the plaintiff failed to raise atriable issue of fact.
Accordingly, the Supreme Court should have granted those branches of LICH's cross motionand FMC's motion which were for summary judgment dismissing the complaint.
In light of this determination, that branch of LICH's cross motion which was for summaryjudgment on its third-party causes of action for contractual and common-law indemnificationshould have been denied as academic, and that branch of FMC's motion which was for summaryjudgment dismissing the third-party complaint should have been granted (see Spence v Island Estates at Mt. Sinai II,LLC, 79 AD3d 936, 939 [2010]; Hoover v International Bus. Machs. Corp., 35 AD3d 371, 372[2006]). Rivera, J.P., Dillon, Leventhal and Chambers, JJ., concur.