| Minutolo v County of Broome |
| 2015 NY Slip Op 05991 [130 AD3d 1202] |
| July 9, 2015 |
| Appellate Division, Third Department |
[*1]
| Dean Minutolo, Appellant, v County of Broome et al.,Respondents. |
Finkelstein & Partners, LLP, Newburgh (Victoria L. Lightcap of counsel), forappellant.
Robert G. Behnke, County Attorney, Binghamton, for respondents.
Lynch, J. Appeal from a judgment of the Supreme Court (Lebous, J.), enteredDecember 12, 2013 in Broome County, upon a verdict rendered in favor ofdefendants.
Plaintiff was injured at the Broome County Veterans Memorial Arena (hereinafterthe arena) in the City of Binghamton, Broome County when he slipped and fell into arecessed paved area behind the arena described as a "pit." He maintains that he slippedon a grease spill alongside the pit where a railing had been removed. In this action,plaintiff alleges that defendants negligently maintained the premises by failing to cleanup the grease spill and for not having a protective railing in place. Following joinder ofissue, Supreme Court partially granted defendants' motion for summary judgment bydismissing that aspect of the claim based on the railing. A jury thereafter returned averdict in defendants' favor, finding that there was not a slippery substance in the areawhere plaintiff fell. Plaintiff appeals.[FN*]
We are not persuaded by plaintiff's contention that the verdict was against the weightof the evidence. A verdict will not be overturned on this basis "unless the evidence sopreponderated in favor of the movant that the verdict could not have been reached on anyfair interpretation of the evidence" (Killon v Parrotta, 98 AD3d 828, 829 [2012] [internalquotation [*2]marks, brackets and citations omitted]). Inaddressing this contention, we view the evidence most favorably to defendant, as thenonmoving party, with considered deference to the jury's assessment of witnesscredibility and interpretation of the evidence (see id.). The record revealscompeting descriptions of the pavement condition. Both plaintiff and his thenfiancé, Amy Minutolo, maintained there was a grease spot, which they pointed outto defendants' security guard, Luther Taylor, when he responded to the scene. Minutoloalso testified that a passerby, Lorraine Ostrowsky, pointed to grease spots and saidplaintiff slipped on those spots. Taylor, however, testified that when he first responded,no one mentioned a grease spot. Later that evening, Taylor explained that plaintiff andMinutolo returned and reported that plaintiff had slipped on grease. At that point, Taylorand his supervisor revisited the scene, and found some "dry oil" on the pavement.Ostrowsky did not recall seeing any grease on the pavement, or that she advised eitherplaintiff or Minutolo that she "had seen slide marks through [the] greasy substance."Despite some discrepancies, this testimony created a credibility issue for the jury toresolve, and we discern no reason to set aside the jury's determination.
We do find, however, that Supreme Court erred in dismissing plaintiff's claimconcerning the missing railing. To prevail on a motion for summary judgment, adefendant in a premises liability action must "show that [it] maintained the premises in areasonably safe condition and neither created nor had actual or constructive notice of anyallegedly dangerous condition" (Ennis-Short v Ostapeck, 68 AD3d 1399, 1400 [2009]; see Carter v State of NewYork, 119 AD3d 1198, 1199 [2014]). Photographs of the accident scene showthat the pit is adjacent to a sidewalk and a parking area at the back of the arena. Twolarge dumpsters were situate in the pit along the parking area, and a railing was in placealong the sidewalk. Plaintiff fell in an area between the dumpsters and the sidewalk and,while a railing would ordinarily be in place in this area, plaintiff maintains that no railingwas in place when he fell. There is no dispute here that the pit area was part of theoriginal construction of the arena. The focus is on whether the railing was in place and, ifnot, whether defendants removed the railing or had actual or constructive notice that therailing was missing, creating a dangerous condition.
Here, defendants' former maintenance supervisor, Michael Holden, explained that thedumpsters were utilized by the maintenance crew and that the exterior of the arena wasinspected each morning. Holden averred that the railings were removable, but that, if heobserved that a railing "was not in place[,] [he] would have replaced it." For his part,Taylor explained that the railings "were typically up, or in place." Ostrowsky testified inher deposition that the railings were in place, but acknowledged that she could not recallif a railing or "portable" gate was in place where plaintiff fell.
Notably, the accident occurred around 5:00 p.m. As such, an early morninginspection does not resolve the question as to whether or when the railing was removed.Nor did any of defendants' witnesses directly confirm that the railing was in place at thetime that plaintiff fell. We take note that defendants' employee, William Weyman,testified that the railing was usually in place but, if removed, was probably removed bymaintenance staff or employees of food vendors at the arena. In our view, thesubmissions actually raise questions of fact as to whether the railing was missing,whether defendants' employees were responsible for removing the railing, whether therailing was missing for a sufficient period of time to permit defendants to discover thecondition and take remedial action and whether the absence of a railing created adangerous condition (see Barleyv Robert J. Wilkins, Inc., 122 AD3d 1116, 1117 [2014]; Carter v State ofNew York, 119 AD3d at 1199-1200; Hagin v Sears, Roebuck & Co., 61 AD3d 1264, 1266[2009]). Accordingly, Supreme Court erred in granting defendants' motion for summaryjudgment dismissing the cause of action concerning the missing railing.
[*3] Peters, P.J., Lahtinen and Garry, JJ., concur. Orderedthat the judgment and the order entered April 26, 2012 are modified, on the law, withoutcosts, by reversing so much of the order as partially granted defendants' motion forsummary judgment; motion denied in its entirety and matter remitted to the SupremeCourt for further proceedings not inconsistent with this decision; and, as so modified,affirmed.
Footnote *:This appeal from thefinal judgment brings up for review the orders partially granting defendants' motion forsummary judgment and denying plaintiff's motion to set aside the verdict (seeCPLR 5501 [a] [1]; Gulati vO'Leary, 125 AD3d 1231, 1232 n [2015]).