NYAMBUU v. Colite International, Ltd., et al., Defendants-Respondents. (2021)

Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered September 12, 2019, which, to the extent appealed and cross-appealed from as limited by the briefs, denied that branch of defendant Whole Foods Market Group, Inc.’s (Whole Foods) motion for summary judgment dismissing plaintiff's negligence claim as against it, and granted those branches of defendants North Shore Neon Sign Co., Inc.’s (North Shore) separate motion and Colite International, Ltd.’s (Colite) cross motion for summary judgment dismissing the negligence claim as against them, unanimously affirmed, without costs.

Plaintiff alleges that she was injured on February 13, 2014, when part of a letter in a Whole Foods Market exterior sign broke, fell, and struck her on the head as she was exiting the Whole Foods store in Union Square while a snowstorm was in progress.  The sign was approximately 12 to 15 feet above the exit used by plaintiff.  The portion that allegedly hit plaintiff was observed by her in the snow on the sidewalk after impact.

It is undisputed that defendant Whole Foods Market Group, Inc. (Whole Foods) owns the sign.  Defendant Colite manufactured the sign.  Defendant North Shore installed the sign in April 2005.

In April 2007 North Shore was called to service the sign when fragments of letters on the sign broke, apparently after being hit by ice.¹  Whole Foods did not take steps to monitor the structural integrity of the sign's lettering in the wake of the 2007 incident.  Indeed, it argues that such monitoring was unnecessary.  In support of that argument Whole Foods points to deposition testimony of representatives of Colite and North Shore who stated that signs such as the one in question are designed for a working life of up to 20 years without structural maintenance, are built to stand up to New York winters, and are not subject to any industry or regulatory standard requiring periodic inspection.  Whole Foods argues that this testimony is proof that the sign was not dangerous, and, even if it was dangerous, that Whole Foods had no actual or constructive notice of its dangerousness.

Contrary to Whole Foods’ argument, the sign's unexpected fragility in 2007 creates an issue of triable fact on these elements of a negligence cause of action.  A tenant has a duty to maintain its premises in a reasonably safe condition (Branch v. SDC Discount Store, Inc., 127 A.D.3d 547, 8 N.Y.S.3d 61 [1st Dept. 2015]).  This includes providing a safe means of ingress and egress (see Branham v. Loews Orpheum Cinemas, Inc., 31 A.D.3d 319, 819 N.Y.S.2d 250 [1st Dept. 2006], affd 8 N.Y.3d 931, 834 N.Y.S.2d 503, 866 N.E.2d 448 [2007]).  “[P]roof of a prior accident, whether offered as proof of the existence of a dangerous condition or as proof of notice thereof, is admissible only upon a showing that the relevant conditions of the subject accident and the previous one were substantially the same” (Hyde v. County of Rensselaer, 51 N.Y.2d 927, 929, 434 N.Y.S.2d 984, 415 N.E.2d 972 [1980];  see Martin v. Our Lady of Wisdom Regional Sch., 151 A.D.3d 838, 54 N.Y.S.3d 692 [2d Dept. 2017];  Dukes v. 800 Grand Concourse Owners, Inc., 198 A.D.2d 13, 603 N.Y.S.2d 138 [1st Dept. 1993]).  Given that the sign in question was supposed to last for up to 20 years without structural maintenance, the fragmentation of letters on the sign after it was hit by ice two years after its installation raises an issue of triable fact as to whether Whole Foods had notice that the sign was dangerous in weather conditions allegedly similar to those that prevailed on the day of plaintiff's injury.  Whole Foods has failed to show that reasonable periodic inspections would not have prevented plaintiff's accident (McGrew v. V.V. Bldg. Corp., 306 A.D.2d 131, 132, 761 N.Y.S.2d 43 [1st Dept. 2003]).

Whole Foods argues that the seven-year interval between the repair made in 2007 and plaintiff's accident, during which time there is no evidence of any similar incident, as a matter of law disproves the sign's dangerousness, and negates any actual notice provided by the 2007 incident.  The absence of any subsequent incident for seven years, under similar conditions as those that prevailed on the day of plaintiff's injury, does not prove that it was safe as a matter of law (see Orlick v. Granit Hotel & Country Club, 30 N.Y.2d 246, 250, 331 N.Y.S.2d 651, 282 N.E.2d 610 [1972] [evidence of no prior incidents “would merely be a factor for consideration and not in any way be conclusive on the nature of the condition of the stairway”];  Gayle v. City of New York, 256 A.D.2d 541, 542–543, 682 N.Y.S.2d 426 [2d Dept. 1998]).

Moreover, a jury could find that Whole Foods was negligent by application of the res ipsa loquitur rule of evidence (see Wilkins v. West Harlem Group Assistance, Inc., 167 A.D.3d 414, 90 N.Y.S.3d 21 [1st Dept. 2018]).  Contrary to Whole Foods's argument, there is nothing in the record to undermine “common experience” that a sign above a store's entrance in New York City does not break and send pieces onto a passersby below in the absence of negligence (Wilkins, supra, 167 A.D.3d at 415, 90 N.Y.S.3d 21;  see Hallett v. Stanley Stores Cleaners & Dyers, Inc., 276 A.D. 386, 387, 94 N.Y.S.2d 622 [1st Dept. 1950], affd 301 N.Y. 698, 95 N.E.2d 52 [1950];  cf.  Shapiro v. Art Craft Strauss Sign Corp., 39 A.D.2d 696, 697, 332 N.Y.S.2d 588 [1st Dept. 1972]).  That the sign was outdoors does not negate the exclusive control element of res ipsa loquitur, since sole physical access is not required in order to apply the evidentiary rule (see Galue v. Independence 270 Madison LLC, 184 A.D.3d 479, 480, 127 N.Y.S.3d 1 [1st Dept. 2020];  Jeanty v. New York City Hous. Auth., 176 A.D.3d 502, 502, 108 N.Y.S.3d 340 [1st Dept. 2019];  Dawson v. National Amusements, Inc., 259 A.D.2d 329, 330, 687 N.Y.S.2d 19 [1st Dept. 1999]).

Plaintiff argues that the remaining defendants, Colite and North Shore, failed to establish their respective prima facie burdens concerning plaintiff's negligence claims.²  Plaintiff's entire argument with respect to Colite is based on the fact that the transcript of its witness's deposition was unsigned.  A party to an action, or a witness on behalf of a party to an action, does not need to comply with the formalities of CPLR 3116(a) in order to use its own deposition transcript in support of his own summary judgment motion, since, by submitting the transcript in support of his own motion, it accepts the accuracy of the transcript (see Castano v. Wygand, 122 A.D.3d 476, 477, 997 N.Y.S.2d 36 [1st Dept. 2014], citing Franco v. Rolling Frito–Lay Sales, Ltd., 103 A.D.3d 543, 962 N.Y.S.2d 54 [1st Dept. 2013]).  Via this deposition testimony Colite established, prima facie, that it manufactured the sign in a reasonably safe manner according to industry standards.  In response plaintiff offered no expert testimony that Colite negligently designed or manufactured the sign, or that the fragmentation of the sign's lettering was caused by negligent design or manufacture.

Plaintiff argues, without explication, that North Shore failed to establish its prima facie entitlement to summary judgment.  North Shore demonstrated, prima facie, that it had no duty to plaintiff.  It is undisputed that North Shore had no ongoing maintenance contract to inspect and service the sign.  Thus, its repair of some of the sign's letters in 2007, and its replacement of some of the sign's lighting elements in 2011, did not trigger any duty to inspect or warn of any purported defects in the sign (Merchants Mut. Ins. Co. v. Quality Signs of Middletown, 110 A.D.3d 1042, 1044–1045, 973 N.Y.S.2d 787 [2d Dept. 2013]).  Moreover, there is nothing in the record to indicate that the letters fragmented, in either 2007 or 2014, due to North Shore's initial installation (see Davis v. Goldsmith, 19 A.D.2d 514, 240 N.Y.S.2d 148 [1st Dept. 1963]).

Res ipsa loquitur cannot apply to either Colite or North Shore on the record presented. Colite and North Shore both lacked any control over the sign, an essential predicate for application of the evidentiary rule.

FOOTNOTES

1.   North Shore also replaced some of the sign's lighting in 2011, but plaintiff does not connect that routine maintenance to her accident.

2.   Plaintiff does not appeal the motion court's dismissal of its breach of warranty and strict products liability claims.