DECISION AND ORDER On July 12, 2014 plaintiff went to have dinner at a restaurant owned and operated by defendants in the Town of Lake George, Warren County. As plaintiff walked up an entrance ramp and onto the restaurant’s exterior wooden deck, a wooden plank of the deck broke and collapsed, causing her right foot to fall through the deck and strike the ground approximately 8 inches below. Plaintiff fell as a result and suffered an injury to her right ankle. Defendants do not dispute causation. The wood on the deck broke.Defendants have moved for summary judgment premised upon the defense that an owner of real property cannot be held liable for injuries caused by a defective condition unless it has actual or constructive notice of that condition. Defendants deny actual and constructive notice and plaintiff has no proof of the former.Plaintiff, in opposition, argues that the established facts support a legal inference of constructive notice by imputed knowledge. Plaintiff also cross moves on a spoliation theory to strike the answer based upon the fact that defendants discarded the actual collapsed board. According to plaintiff, discarding of the failed wooden plank following defendants’ near immediate repair of the area constitutes a wilful destruction of evidence. Lastly, plaintiff seeks summary judgment on liability by application of res ipsa loquitur. The motion and cross motion are considered ad seriatim.“Whenever the general public is invited into stores, office buildings and other places of public assembly, the owner [or occupant] is charged with the duty of providing the public with a reasonably safe premises” (Gallagher v. St. Raymond’s R. C. Church, 21 NY2d 554, 557 [1968]; see Basso v. Miller, 40 NY2d 233, 241 [1976]; Hendricks v. Lee’s Family, 301 AD2d 1013, 1013 [2003]). It is also well established that “[a] landowner is liable for a dangerous or defective condition on [their] property when the landowner ‘created the condition or had actual or constructive notice of it and a reasonable time within which to remedy it’” (Anderson v. Weinberg, 70 AD3d 1438, 1439 [2010], quoting Backer v. Central Parking Sys., 292 AD2d 408, 409 [2002]; see Cook v. Sutton, 254 A.D.2d 821, 821 [1998]).A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it (see Mehta v. Stop & Shop Supermarket Co., LLC, 129 AD3d 1037, 1038 [2015]; Sperling v. Wyckoff Hgts. Hosp., 129 AD3d 826, 827 [2015]; Kiskiel v. Stone Edge Mgt., Inc., 129 AD3d 672, 673 [2015]).To meet its burden on this issue a defendant is required to offer evidence as to when the area in question was last cleaned or inspected relative to the time when a plaintiff slipped and fell (see Bergin v. Golshani, 130 AD3d 767, 768 (2015); Mehta v. Stop & Shop Supermarket Co., LLC, 129 A.D.3d at 1038; Sperling v. Wyckoff Hgts. Hosp., 129 A.D.3d at 827). “‘Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice’” (Mehta v. Stop & Shop Supermarket Co., LLC, 129 AD3d at 1038, quoting Herman v. Lifeplex, LLC, 106 AD3d 1050, 1051 [2013] [emphasis added]; accord Barris v. One Beard St., LLC, 126 AD3d 831, 832 [2015]; Arcabascio v. We’re Assoc., Inc., 125 AD3d 904, 904-905 [2015]).Defendant John Scott Wood — the owner of defendant J.S.W. Enterprises, Inc. — has submitted an affidavit in support of this motion, stating as follows:“The restaurant is a seasonal restaurant. It opens May 15th to October 15th. At the beginning of each season prior to putting out the furniture I do any repairs that need to be done to the deck, I pressure wash it. I check it. I walk back and forth to check to see any kinds of boards that may have a knot that might show its coming loose or a butt joint that might need a screw in it or anything that needs to be replaced. I’ll take sections out and replace it. I do that personally.“I personally walk the entire deck looking for loose boards, make sure everything is screwed down and fastened tightly. I look for conformity in color which is usually all gray because it is pressure treated wood. Usually the lighter color ones would tell me it’s a board that was replaced. I also look for cracks or splinters in the planking. The wood is pressure treated throughout the board. They are treated at 2,500 square pounds of pressure. The wood is not stained or painted. I look for mold and mildew. When cleaning the deck I also bleach it using a chemical…for treating wood decks. Each year [the] County does inspections of the premises, one of them being safety. Each evening that we are open either an employee or myself cleans the deck, picking up debris making sure it is clean.”The Court finds that this evidence is not proximal enough to satisfy defendants’ initial burden on the issue of lack of constructive notice and, as such, is insufficient to demonstrate a lack of constructive notice (compare Kravets v. New York City Hous. Auth., 134 AD3d 678, 679-680 [2015]). While Wood’s affidavit establishes that the exterior deck area is inspected and cleaned on a regular basis, it fails to more narrowly present evidence of when the specific area where plaintiff fell was last cleaned or inspected before the accident (see Quinones v. Starret City, Inc., 163 AD3d 1020, 1022 [2018]; Eksarko v. Associated Supermarket, 155 AD3d 826, 827-828 [2017]; Perez v. Wendell Terrace Owners Corp., 150 AD3d 1162, 1163 [2017]). Defendants have failed to establish, prima facie, that they did not have constructive notice of the alleged hazardous conditions.Turning now to that aspect of the cross motion which asserts a theory of spoliation, the Court is not convinced that plaintiff has been hampered in her ability to establish her case. There is photographic evidence, eyewitness testimony including at least five of plaintiff’s family members, and plaintiff’s own testimony “as to the dynamics of the accident, indicat[ing] that the absence of the missing evidence would not deprive…plaintiff of the ability to establish her case” (Hoffman v. United Methodist Church, 76 AD3d 541, 543 [2011]; Gotto v. Eusebe-Carter, 69 AD3d 566, 567-568 [2010]; Denoyelles v. Gallagher, 40 AD3d 1027, 1027 [2007]). If anything the missing evidence obstructs defendants’ cause since, should “an object capable of deteriorating [be] concealed from view, a property owner’s duty of reasonable care entails [only] periodic inspection of the area of potential defect” (Hayes v. Riverbend Hous. Co., Inc., 40 AD3d 500, 501 [2007], lv denied 9 NY3d 809 [2007]; see Mirkinson v. Stonehill Realty Corp., 53 AD3d 534, 534 [2008]; Personius v. Mann, 20 AD3d 616, 619 [2005], affd 5 NY3d 857 [2005]). Defendants have thus deprived themselves of an opportunity to prove that the cause of the deck failure was a deterioration concealed from their view.With respect to the second aspect of the cross motion, res ipsa loquitor is not a separate theory of liability but, rather, “a common-sense application of the probative value of circumstantial evidence” (Abbott v. Page Airways, 23 NY2d 502, 512 [1969] [internal quotation marks and citation omitted]). The doctrine may be invoked only where the unexplained circumstances of the case justify the inference of negligence (see Abbott v. New Rochelle Hosp. Med. Ctr., 141 AD2d 589, 590 [1988], app denied 72 NY2d 808 [1988]; Loeffler v. Rogers, 136 AD2d 824, 824 [1988]; Monroe v. City of New York, 67 AD2d 89, 97 [1979]; Albert v. State of New York, 51 AD2d 611, 611 [1976]; Breese v. Hertz Corp., 25 AD2d 621, 622 [1966]). The effect of this rule is to make out a prima facie case entitling plaintiff to go to the jury (see States v. Lourdes Hosp., 100 NY2d 208, 212 [2003]; Horowitz v. Kevah Konner, Inc., 67 AD2d 38, 41 [1979]).Since the doctrine is a form of circumstantial evidence that merely provides a permissible inference of negligence rather than a presumption, its application may serve as a basis for an award of summary judgment to plaintiff only in the rarest of cases and only when “plaintiff’s circumstantial proof is so convincing and…defendant’s response so weak that the inference of defendant’s negligence is inescapable” (Morejon v. Rais Constr. Co., 7 NY3d 203, 209 [2006]; see Horowitz v. Kevah Konner, Inc., 67 AD2d at 41). This is not one of those cases as open questions of fact remain, specifically the cause of the undisputed failure of the deck area as plaintiff crossed it. Plaintiff, however, may look forward to a res ipsa loquitor charge — if the evidence presents a question of fact as to defendants’ liability (see PJI 2:65). The jury may then consider the circumstantial evidence and infer that defendants were negligent in some unspecified way.Therefore, having considered the Affidavit of Scott W. Bush, Esq. with Exhibits “1″ through “5″ attached thereto, sworn to December 12, 2018; the Affidavit of John Scott Wood with Exhibits “1″ through “4″ attached thereto, sworn to November 26, 2018; Memorandum of Law of Scott W. Bush, Esq., dated December 12, 2018; the Affirmation of Steven Aripotch, Esq. with Exhibits “A” through “F” attached thereto, dated January 15, 2019; the Memorandum of Law of Steven Aripotch, Esq., dated January 16, 2019; the Affirmation of Scott W. Bush, Esq., dated January 23, 2019; the Affidavit of Chester J. Zaremba, PE with Exhibit “A” attached thereto, sworn to January 22, 2019; and the Affirmation of Steven Aripotch, Esq., dated January 31, 2019, and the Court having heard oral argument on February 25, 2019 with Victor Greco, Esq. appearing on behalf of plaintiff and Scott W. Bush, Esq, Esq. appearing on behalf of defendants, it is herebyORDERED that defendants’ motion for summary judgment is denied in its entirety, and it is furtherORDERED that plaintiff’s cross motion is denied in its entirety; and it is further ORDERED that any relief not specifically granted has nonetheless been considered and is denied.The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated December 12, 2018 and the Notice of Cross Motion dated January 12, 2019. Counsel for plaintiff is directed to obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.Dated: February 27, 2019Lake George, New York
