Delmar v Burger Kng Corp. 2015 NY Slp Op 30991(U) May 6, 2015 Supreme Court, Bronx County Docket Number: 307681/12 Judge: Mark Fredlander Cases posted wth a "30000" dentfer,.e., 2013 NY Slp Op 30001(U), are republshed from varous state and local government webstes. These nclude the New York State Unfed Court Systems E-Courts Servce, and the Bronx County Clerks offce. Ths opnon s uncorrected and not selected for offcal publcaton.
[* 1] MCHAEL DELMAR, NEW YORK SUPREME COURT-COUNTY OF BRONX PARTA-25 -aganst Plantff, MEMORANDUM : DECSON/ORDER ndex No. 307681/12 BURGER KNG CORPORATON, POPE]YES LOUSANA KTCHEN, GRAND CONCOURSE REALTY CORP. AND LAL RESTAURANT GROUP, NC., HON. MARK FREDLANDER Defendants. Defendants, Burger Kng Corporaton ("Burger Kng") and Popeyes Lousana Ktchen ("Popeyes), move for an order, pursuant to CPLR 3212, grantng Burger Kng and Popeyes summary judgment dsmssng plantffs complant and all cross-clams aganst them. The moton s decded as herenafter ndcated. Ths s an acton by plantff to recover monetary damages for personal njures allegedly sustaned by hm on August 12, 2011, as a result of hs slppng and fallng at a restaurant premses used by both Burger Kng and Popeyes, located at 557 Grand Concourse, Bronx, New York. More specfcally, plantff alleges that defendants Burger Kng and Popeyes caused and created a hazardous condton n neglgently moppng the floor of ther restaurant and falng to post warnng sgns that the floor was wet. n support of the moton, defendants Burger Kng and Popeyes submt a copy of the pleadngs, and the deposton transcrpts of plantff and of Harunar Rashd ("Rashd"). n opposton to the moton, plantff submts a photograph showng th~ locaton at whch the Page 1 of 4
[* 2] - accdent occurred. The facts, as culled from the pleadngs, deposton testmony and photograph, are as follows: On the mornng of August 12, 2011, after vstng a "lver clnc," plantff left the subway at 149 1 h Street, Bronx, New York, to get somethng to eat: The weather was good. Sometme between lo:ooa.m. and 12:00 P.M., plantff vsted th 1 e subject restaurant, whch was nearby. Popeyes and Burger Kng are adjacent to each other, occupyng dfferent levels, Popeyes n an elevated level on one sde, and Burger Kng n the lower level on the other sde. Access to Burger Kng s obtaned by gong through Popeyes elevated level, and down two steps. The steps had a handral on the descendng rght sde of the steps. Plantff bought a full tray of food at Popeyes. However, there was no avalable seatng on the Popeyes sde of the restaurant. At some pont pror to hs accdent, plantff saw the steps, but was not sure exactly when. The tray plantff was carryng obscured hs vew of the steps. Whle carryng the tray n both hands, wth hs cane probably hooked n front of hs rght wrst, plantff made hs way toward the Burger Kng sde to fnd a place to st down and eat. Plantffs testmony was unclear as to precsely where he slpped. Plantff frst testfed that he slpped on the steps themselves. Later, when asked where he slpped, (on the steps, n Popeyes or Burger Kng) he responded "At the top of the steps." As a resultofhs fall, plantff landed at ground level beyond the steps, and n the Bl\fger Kng. After hs fall, plantff notced that the floor, as well as the back of hs pants and shrt were wet. Plantff also "smelled a cleanng type of agent, somethng that they use lke Pne Sol or whatever that s, a detergent..." Pror or subsequent to hs fall, plkntffnever saw anyone n the restaurant moppng, usng a broom, emptyng garbage or cleanng the area. There were no Page 2 of 4
[* 3] wet floor sgns or cones n the area and no one warned hm that the floor was wet. Rashd testfed at hs deposton ~at he was employed by Lal Restaurant Group, nc. ("Lal") snce 1997. Lal had fve Burger Kng franchses, located n the Bronx, Queens and Yonkers. Rashd worked for Lal as the dvson supervsor for Burger Kng snce January 16,! : 2012. Hs responsbltes were to oversee these franchses, tran managers, ensure store complance wth varous rules and regulatbns, and provde day to day support for management teams and stores. Lal owned several dfferent types of franchses, such as Dunkn Donuts, Baskn-Robbns and Popeyes. Four of fve restaurants n hs dvson have Popeyes restaurants adjacent to them, ncludng the restaurant at whch plantffs accdent occurred. Rashd dd not know what knd of tranng Popeyes employees receved, but there was no jont tranng. Accordng to Rashd, cleanng supples for the restaurant are kept n the back of the store. They nclude two mops, a bucket, and floor cleanng soluton. Ras~d dd not know what type of cleanng soluton Popeyes used. However, Rashd testfed that the floor cleaners utlzed by the restaurants do not contan any scent or smell. The normal procedure for cleanng the dnng area of the restaurant s to place cauton cones n.the area that s to be cleaned, then to sweep the floor and mop t. These cleanng procedures were nsttuted as needed, b~t typcally on a ffteen mnute to one half hour bass. Typcally, when they were not busy wth customers, checkng of the area and cleanng was done every thrty mnutes. When they were busy, vsual checks and cleanng were done every ffteen mnutes. When asked fhe knew the name of the manager at the tme of plantffs fall, Rashd responded, " dont have any dea, because was not there.". J?efendants faled to establsh that th~y dd not cause or create the complaned of, hazardous condton. Rashds testmony establshed that there was~ cleanng schedule. Page 3 of 4,,,
[* 4] However, no evdence was proffered as to whether the cleanng schedule was followed on the day of plantffs accdent, or when the area where plantff fell was last cleaned or nspected. Garca v. 1265 Morrson LLC, 122 A.D.3d 512 (1 1 Dept. 2014); Seleznyov v. New York Cty.! Trans. Auth., 113 A.D.3d 497 (1 1 Dept. 2014); Gauter v. 941 ntervale Realty LLC, 108 A.D.3d 481 (1st Dept. 2013). Further, plantffs testmony that the area where he fell was wet, together wth hs detecton of a smell of a cleanng agent, lke Pne Sol, provdes a non-speculatve bass for hs verson of the accdent and suffcently establshes a nexus between the hazardous, condton and the crcumstances of hs fall. Defendants Burger Kngs and Popeyes moton for summary judgment s dened n ts! entrety.! Dated: The foregong consttutes the Decson and order of the CoUrt. _ +---/t-+j_\ S_ 1 ~1Jw- MARK FREDLANDER, J.S.C. Page 4 of 4