Curr v Saks Fifth Ave., LLC. 2024 NY Slip Op 33300(U) September 20, 2024 Supreme Court, New York County Docket Number: Index No. 161093/2019 Judge: Paul A. Goetz Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001 (U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.161093/2019 CURR, SUSAN vs. SAKS FIFTH AVENUE, LLC.

Motion No. 001 Page 1 of 6 The following e

- filed documents, l isted by NYSCEF document number (Motion 001) 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 43, 46, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70 were read on this motion to/for JUDGMENT

- SUMMARY

. In this action arising from a department store employee’s trip and fall over a floor mat , defendant Gilbane Building Company (Gilbane) moves pursuant to CPLR § 3212 for summary judgment on the cause of action for negligence brought against it by plaintiff and the crossc laims brought against it by defendant Saks Fifth Avenue LLC (Saks).
BACKGROUND Plaintiff began working as a sales associate for Saks , a department store located at 611 Fifth Avenue, New York, NY 10022 , in 2016 (NYSCEF Doc No 31, 9:13

- 21). From the time plaintiff started and up through the date of her accident, Gilbane was working on an electrical upgrade which required frequent use of the employee

- only section of the store ( id. , 17:4

- 8,
10:21

- 24; NYSCEF Doc No 33, 10:14

- 19 ). Saks placed protective mats (provided by Gilbane)
on the floor of the employee entrance/exit hallway, since it was also used by Gilbane workers
who carried construction materials in and out of the store with them ( id. , 11:10

- 17 ; NYSC EF Doc No 33, 16:20

- 17:5 ). Plaintiff alleges that she notified Saks security guards on multiple



### SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. PAUL A. GOETZ PART 47 Justice

----------------------------------------------------------------- -- -------------- X INDEX NO. 161093/2019
MOTION DATE 02/26/2024
MOTION SEQ. NO. 001

DECISION + ORDER ON MOTION SUSAN CURR, Plaintiff,

- v - SAKS FIFTH AVENUE, LLC., GILBANE BUILDING COMPANY, Defendant.

------------------------------------------------------------------- -- ------------ X INDEX NO. 161093/2019 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 09/20/2024

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### [* 1]161093/2019 CURR, SUSAN vs. SAKS FIFTH AVENUE, LLC.

Motion No. 001 Page 2 of 6 occasions that the mats were not properly secured to the floor , as the tape under the mat’s edges
had worn out or was missing in places ; security advised that the maintenance team would fix it , but plaintiff ’s complaints were not addressed ( id. , 13:12

- 14:17 ; NYSCEF Doc No 65, 94: 3

- 10 ). On October 15, 2018, plaintiff was on her way out of the store through the employee entrance/exit hallway ( id. , 9:22

- 10: 12). As she walked, she tripped over a protruding edge of t he mat, which was still not secured , and fell forward to the floor, injuring her knees, wrists, and left shoulder ( id. , 9:22

- 1 0:2, 19:8

- 12 ; NYSCEF Doc No 1, ¶ 11 ). Plaintiff filed separate lawsuits against Saks (NYSCEF Doc No 1) and Gilbane (NYSCEF Doc No 35) for negligence , and t he actions were consolidated by decision and order dated April 5, 2023 (NYSCEF Doc No 38). DISCUSSION “It is well settled that ‘the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact

. ’” ( Pullman v Silver man , 28 NY3d 1060, 1062 [2016], quoting Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986]). “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing
papers
. ” ( Winegrad v New York Univ. Med. Ctr. , 64 NY2d 85 1, 853 [1985] [internal citations omitted] ). “Once such a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to raise material issues of fact which require a tria l of the action .” ( Cabrera v Rodriguez , 72 AD3d 553, 553

- 554 [1 st Dept 2010] , citing Alvarez , 68 NY2d at 342 ). “The court’s function on a motion for summary judgment is merely to determine if any triable issues exist, not to determine the merits of any

suc h issues or to assess credibility

. ” ( Meridian Mg m t. Corp. v Cristi Cleaning Serv. Corp ., 70 AD3d 508, 510

- 511 [1 st Dept 2010] [internal citations omitted]). If there is any doubt as to the INDEX NO. 161093/2019 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 09/20/2024

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Motion No. 001 Page 3 of 6 existence of a triable fact, the motion for summary judgment must b e denied ( Rotuba Extruders v Ceppos , 46 NY2d 223, 231 [1978])

. i. Plaintiff’s Negligence Claim Against Gilbane Gilbane argues that there is no basis for plaintiff’s negligence claim as against it because
Gilbane did not create the hazardous condition that caused plaintiff’s accident (NYSCEF Doc No 28)

. It asserts that, while Gilbane agreed to “provide a suitable protective covering of all finished floors . . . where the Work is being performed” (NYSCEF Doc No 40, § 26.D) , and did in fact provide the protec tive mats , “ the laying down of the mat flooring, and its permanent attachment to the concrete below, preceded the construction on the site, and [] it was Saks itself, and not Gilbane, who put down the flooring or had it installed” ( id. ; NYSCEF Doc No 32, 72:4

- 9 [ Saks assistant general manager Jim Lostuto stating that the flooring at the time of plaintiff’s accident was in place prior to renovation] ; NYSCEF Doc No 33, 15: 7

- 22 [ Gilbane project manager Doug
Lawson stating that “[t]here was a surface mat that Saks had put in place”]). Gilbane further

asserts that as an independent contractor, it owed no duty to third parties such as plaintiff.
Plaintiff argues that whether Gilbane installed the matting/flooring is irrelevant , as the “evidence [shows] that Gilbane was performing extensive renovations . . . when [and where] plaintiff fell ,”
which could have created or exacerbated the hazardous condition (NY SCEF Doc No 62). She also argues that Gilbane failed to demonstrate its lack of notice of the hazardous condition, as it offered no evidence as to when the mat was last inspected prior to plaintiff’s accident. There are “ three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care

-- and thus be potentially liable in tort

-- to third
persons ,” including, as alleged by plaintiff , “ where the contracting party, in failing to exercise
reasonable c are in the performance of his duties, ‘ launches a force or instrument of harm ’ ” INDEX NO. 161093/2019 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 09/20/2024

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Motion No. 001 Page 4 of 6 ( Espinal v Melville Snow Constrs. , 98 NY2d 136, 140 [ 2002] , citing H.R. Moch Co. v Rensselaer
Water Co. , 247 NY160, 168 [1928] ). “ Where such a duty is alleged, a defendant cont ractor moving for summary judgment has the burden of eliminating all material issues of fact, and establishing conclusively, that it did not launch a force or instrument of harm by negligently creating the dangerous or defective condition complained of ” ( B ruce v Edgewater Indus. Park,
LLC , 169 AD3d 753, 754 [2 nd Dept 2019]). Here, Gilbane has demonstrated that there is no triable issue of fact as to whether it
created “launche[d] a force or instrument of harm” because the mats it supplied were not defective except in the way that they were installed and/or maintained , and the mats were installed and/or maintained by Saks, not Gilbane. Plaintiff’s allegation that Gilbane may have “create[d] a dangerous condition in dama ging the mats/causing the tape to [be] removed or worn” (NYSCEF Doc No 62) is merely speculative and therefore insufficient to raise an issue of
fact ( Razza v LP Petroleum Corp. , 153 AD3d 740 [2 nd Dept 2017] [ “ plaintiff testified [] that
when she exited th e convenience store, her left foot went underneath the floor mat, causing her to trip and fall. While [she] assumed that a leaf blower operated by an employee of CML caused the mat to lift up immediately prior to her fall, she did not see anyone in the are a using a leaf blower prior to her fall and she never observed the mat lift up from the ground ” and therefore failed to raise an issue of fact as to CML’s liability]). Accordingly, the part of Gilbane’s motion seeking summary judgment on plaintiff’s neglig ence claim as against it will be granted.
ii. Saks’ s Crossclaim s Against Gilbane
Sak s notes that it has not brought any crossclaims against Gilbane (NYSCEF Doc No 59). In reply, Gilbane “[a]dmit [s] Saks is correct [and] therefore withdraws that portion of its INDEX NO. 161093/2019 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 09/20/2024

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Motion No. 001 Page 5 of 6 [motion]” (NYSCEF Doc No 70). Accordingly, the part of Gilbane’s motion seeking summary judgment on Saks’ s crossclaims as against it will be permitted to be withdrawn

. CONCLUSION
Based on t he foregoing, it is
ORDERED that the part of Gilbane’s motion seeking summary judgment on plaintiff’s
claim as against it is granted , and Gilbane is dismissed from this action ; and it is therefore ORDERED that the caption in this matter is hereby amended as follows:

SUSAN CURR, Plaintiff,

- v – SAKS FIFTH AVENUE, LLC ., Defendant.

And it is further ORDERED that all papers, pleadings, and proceedings in the above

- entitled action be amended in accordance with this change, without prejudice to the proceedings heretofore had herein; and it is further
ORDERED that defendant Gilbane Building Company shall, within 30 days of entry of this order, serve a copy of this order with notice of entry upon the County Clerk and the Clerk of the General Clerk’s O ffice, who are directed to mark the court’s records to reflect the change in the caption herein; and it is further ORDERED that such service upon the County Clerk and the Clerk of the General Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse INDEX NO. 161093/2019 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 09/20/2024

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Motion No. 001 Page 6 of 6 and County Clerk Procedures for Electronically Filed Cases (accessible at the “E

- Filing” page on the court’s website ) ; and it is further ORDERED that the part of Gilbane’s motion seeking summary judgment on Saks’s crossclaims as against it is permitted to be withdrawn

.

9/20/2024 DATE PAUL A. GOETZ, J.S.C.
CHECK ONE: CASE DISPOSED X NON - FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE INDEX NO. 161093/2019 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 09/20/2024

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