Preview
FILED: NEW YORK COUNTY CLERK 07/15/2022 03:18 PM INDEX NO. 157001/2019
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/15/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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OSCAR A. SOSA, Index No.: 157001/2019
Plaintiff,
-against- AFFIRMATION
IN SUPPORT
85 TENTH AVENUE ASSOCIATES, L.L.C.,
Defendant.
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MICHAEL J. CARRO, an attorney duly admitted to practice law in and before the
Courts of the State of New York affirms the following under the penalties of perjury:
INTRODUCTION
1. I am a partner at the firm LONDON FISCHER LLP, attorneys for
Defendant 85 TENTH AVENUE ASSOCIATES, L.L.C. (“Defendant”). As such, I am fully
familiar with the facts set forth in this Affirmation based upon my review of the file maintained
by this office.
2. I submit this Affirmation in support of Defendants’ motion for an Order:
a. Pursuant to Rule 3212 of the Civil Practice Law and
Rules (“CPLR”), granting summary judgment to
Defendant, dismissing each cause of action asserted
against it, on the grounds that there exists no material
issue of fact regarding Defendant’s liability and because
Defendants are entitled to judgment as a matter of law;
b. Pursuant to Rule 3212 of the Civil Practice Law and
Rules (“CPLR”), granting summary judgment to
Defendant, dismissing each cause of action asserted
against it, on the grounds that Defendants had no notice
of the allegedly defective condition;
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c. Directing the Clerk of the Court to enter judgement
dismissing each claim against Defendant in this action;
and
d. Granting Defendant such other, further and different
relief as this Court deems just and proper.
NATURE OF THE CASE
3. This action arises out of personal injuries allegedly sustained by plaintiff,
Oscar A. Sosa (“Plaintiff”), a Gargulo Produce delivery person, on June 10, 2019. At the time of
the injury, Plaintiff was present at the loading dock of the property located at 85 Tenth Avenue,
New York, New York (the “Premise”), in order to deliver produce to restaurants operating on the
Premise.
SCHEDULE OF EXHIBITS
EXHIBIT A: Complaint dated July 17, 2019
EXHIBIT B: Answer dated October 10, 2019
EXHIBIT C: Bill of Particulars dated December 12, 2019
EXHIBIT D: Plaintiff’s Deposition dated June 16, 2021
EXHIBIT E: Defendant’s Deposition dated December 21, 2021
EXHIBIT F: Note of Issue and Certificate of Readiness dated May 18, 2022
EXHIBIT G: Affidavit of Peter Chen
EXHIBIT H: Affidavit of Mirza Rastoder
EXHIBIT I: Surveillance Video of Plaintiff’s Accident
EXHIBIT J: Photograph from Plaintiff’s EBT
PROCEDURAL HISTORY
4. Plaintiff filed his Summons and Verified Complaint against Defendant on
July 17, 2019, a copy of which is annexed as Exhibit A, asserting a single cause of action for
Common Law negligence.
5. Defendant joined issue on October 10, 2019, by way of Verified Answer, a
copy of which is annexed as Exhibit B, denying all material allegations.
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6. On December 12, 2019, Plaintiff served his Verified Bill of Particulars, a
copy of which is annexed as Exhibit C, and alleged he was caused to slip and fall due to a slippery,
wet, slick and oily condition present on the loading dock. Plaintiff further alleged Defendant had
both actual and constructive notice of the alleged condition.
7. Plaintiff’s deposition occurred on June 16, 2021, a copy of which is annexed
as Exhibit D.
8. Defendant’s deposition occurred on, a copy of which is annexed as Exhibit
E.
9. Plaintiff filed the Note of Issue and Certificate of Readiness on May 18,
2022, a copy of which is annexed as Exhibit F.
FACTS
A. The Accident
10. Plaintiff is currently employed by Gargulo Produce (“Gargulo”) as a truck
driver, and has worked in this capacity for over nine and a half years, including on the date of his
accident. See Exhibit D, 14:9-15.
11. Plaintiff’s accident occurred on June 10, 2019, at approximately 8:30 a.m.
See Exhibit “C” at ¶ 3. Specifically, Plaintiff was present at the loading dock of the Premise. Id, at ¶
4.
12. At deposition, Plaintiff testified he began his shift at 4:00 a.m., where he first
reported to Gargulo. See Exhibit D at 18:15-19. He iterated that, upon arrival, he first went to the
office to get his route papers, then he got his truck and left to complete his scheduled deliveries. Id, at
20:16-17. Plaintiff was not responsible to load the produce into his truck as that task was completed
by a different Gargulo employee. Id, at 20:23-25.
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13. Further, Plaintiff always drove the same truck, and worked with an assistant.
Id, 21:2-8. His assistant that day was “Hector”, who no longer works for Gargulo. Id, at 21:12-14.
14. Plaintiff’s truck is approximately 24 feet long and approximately 10-12 feet
high. Id, at 31:18-23. To access the box which housed the pallets, Plaintiff was required to exit the
vehicle, and go around to the back. Id, at 31-32:24-9. The box, including the floors, were composed
of metal. Id, at 32:16-20.
15. Plaintiff testified that he had been to the Premise, prior, and would make
deliveries at the Premise approximately three times per week. Id, at 25:7-13. He always parked the
truck in the same place. Id, at 25:14-16.
16. When they arrived at the Premise on the date of the accident, Plaintiff was
required to modify the load on the truck in order to rearrange the pallets to gain access to those that
were being delivered. Id, at 26-27:13- 2. Plaintiff and his assistant were to make two deliveries at the
Premise, one of which was for the High Line. Id, at 29:8. To modify the load, Plaintiff utilized a pallet
jack. Id, at 26:16.
17. After Plaintiff gathered the necessary pallets, he began to pull the pallet jack
from the inside of the box to the floor of the loading dock when he slipped and fell. Id, at 35: 6-8. He
was walking backwards and landed on the floor of the loading dock when he fell. Id, at 35:9-12,
36:16-18.
B. Plaintiff’s Testimony
18. Plaintiff does not know what caused him to slip. Id, at 35:13-14.
19. After he fell, he testified that he saw “a dark stain.” Id, at 35:15-18. Plaintiff
initially saw the stain when he first got to the back of the truck. Id, 36:19-22. He did not mention
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the stain to anyone, but testified “[both he and his assistant] knew the existence of the stain.” Id,
38:13-14.
20. When asked to clarify whether the use of the phrase “stain” referred to mere
discoloration or an oily slippery substance, Plaintiff merely responded “I see other companies
making deliveries and they unload fish, meat. So when we get there, we try to notice these things
to avoid stepping in it.” Id, at 38-39:15-3.
21. With respect to the dimensions of the stain, Plaintiff testified that the stain
didn’t have a discernable figure, but was approximately two feet in length, and one and a half feet
in width; it did not have any depth. Id, at 64-65:24-14.
22. Although Plaintiff discusses the stain in detail when asked what led to his
accident, his subsequent testimony makes clear that the stain did not cause him to fall, and further
highlights that Plaintiff does not know what condition caused him to slip.
A summary of pertinent testimony is as follows:
Pages 68-69 22-11, referencing Defendant’s Exhibit B, a copy of which is annexed
as Exhibit J.
Q. Sir, you have been provided with a color copy as Defendant’s Exhibit B; is that
correct?
A. Yes.
Mr. Melendez: Counsel, do you agree that’s accurate?
Mr. Lawrence: Yes.
Q. Do you see in that photograph the stain you said you slipped on?
A. It’s not that I’m saying that I slipped there, yes.
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Q. You are saying that is not where you slipped?
A. Exactly.
Q. Can you circle in the area where you slipped?
(Witness complies)
Q. Is that where the stain is?
A. No. The stain was a little more to the side.
Q. Okay. You can put the photograph to the side now….
Page 82-83, lines 22-11
Q. Is it correct that the stain did not cause you to slip and fall?
A. The area was slippery perhaps not the stain itself. A lot of people pass by there.
Q. At the time you were unloading the truck, isn’t it correct that no one else was
passing by?
A. At that time – – at that moment.
Q. You also said that it was raining that morning. Is it possible that your shoes were
wet from making that delivery that morning?
A. Could be.
23. At the time of his accident, Plaintiff was wearing a t-shirt, shorts, and
sketcher brand sneakers. Id, at 23:9-13.
24. Plaintiff’s accident was caught on camera, a copy of which is annexed as
Exhibit I.
C. Affidavit of Mirza Rastoder
25. Further, defendants had no notice of a defective condition at the loading
dock at the time of plaintiff’s accident. See Mirza Rastoder’s Affidavit, annexed as Exhibit H.
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26. Mr. Rastoder is a General Manager for Related Management Company, and
at the time of plaintiff's accident, the Premise. See Exhibit H, para. 2.
27. As General Manager, Mr. Rastoder has various responsibilities, amongst
which require he supervise the employees responsible for the general maintenance. Id, at para. 3.
On June 10, 2019, Mr. Rastoder was physically present the Premise; while he did not personally
witness Plaintiff’s accident, he responded to the incident alert and prepared the initial investigation.
Id, at para. 4.
28. 85 Tenth is a commercial building which leases out office and retail space,
including three restaurants. Id, para. 6. It also has a loading dock which contains two separate bay
(east and west, respectively) areas to receive deliveries; for general tenants, the loading dock is
open Monday through Friday from 8:00 a.m. and closes at 6:00 p.m., including on June 10, 2019.
Tenants occasionally request off-hour and weekend deliveries, which are typically accommodated
when practicable. Id.
29. The loading dock additionally has two levels – the ground and the platform.
Id, at para. 7. Both the ground level and the platform are constructed with concrete, but the platform
surface is coated by a Q-metal decking surface which is metal with diamond plating. Id.
30. The ceiling immediately above the loading dock is made of terra cotta, and
contains piping for an electrical sprinkler as well as an HVAC duct. Id, at para. 8. The duct work
in the ceiling is insulated; in the event a leak did occur, the insulation would absorb all moisture
to prevent water from dripping from the HVAC unit to the ground below. Id.
31. Two cameras are situated in the loading dock – one to record operations at
each respective bay. Id, at para. 9. The cameras and DVR are manufactured by Avigilon. Id. The
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cameras are operational 24/7, including on June 10, 2019. Id. Further, recordings are preserved
through a DVR, which is maintained at 85 Tenth, for approximately 10 days. After that period, the
recordings are taped over unless first extracted. Id.
32. On June 10, 2019, the cameras were operational, and captured Plaintiff’s
accident, which occurred in the west bay of the loading dock at approximately 8:40 a.m., less than
an hour after the dock opened for the day.1 Id, at para. 10. While Mr. Rastoder did not witness
Plaintiff’s accident, the security personnel stationed at the loading dock notified him directly, using
a radio, within moments of the occurrence. Id.
33. Mr. Rastoder further iterated that when he arrived at the loading dock, he
saw Plaintiff seated on the ground. Id. He attempted to speak with Plaintiff to determine what
happened, but had trouble communicating with him due to the language barrier. Id. All Mr.
Rastoder was able to discern was that he had slipped and fell, injuring his leg. Id.
34. Further, Mr. Rastoder opined that he personally inspected the floor of the
loading dock at that time but found the ground was dry, and he did not see any liquid substance,
oil or other substance to explain what caused Plaintiff to slip and fall. Id, at para. 12. Additionally,
Plaintiff’s clothing appeared to be dry. Id.
35. There are three members of the maintenance staff at the Premise: (1) a
daytime porter; (2) afternoon/nighttime porter; (3) and the freight operator. Id, at para. 17. The
porters are responsible for the maintenance and cleaning of various areas throughout the building,
including the loading dock. Id, at para. 18. The daytime porter is on duty from 6:00 a.m. to 2:30
1
A copy of the video surveillance footage is available at
https://londonfischer.sharefile.com/i/i8dfda2c081540328 and are reproduced on disk and annexed to the motion
papers as Exhibit J.
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p.m., including on June 10, 2019. Id. The afternoon/nighttime porter is on duty from 2:30 p.m. to
10:30 p.m., including June 10, 2019. Id.
36. The porters are responsible to inspect and clean the loading dock on a daily
basis, a minimum of twice per day, including on June 10, 2019. Id, at para. 19. The daytime porter
is responsible to conduct the first inspection of the loading dock and undertake its cleaning prior
to opening for deliveries at 8:00 a.m. Id. The second required inspection and cleaning is conducted
by the afternoon/nighttime porter after the loading dock is closed to deliveries, after 6:00 p.m. Id.
37. Each morning, at 6:00 a.m., including June 10, 2019, the daytime porter,
starts the workday by bringing garbage bins to each respective tenant. Id, at para. 20. Immediately
thereafter he inspects and cleans the loading dock. On June 10, 2019, Loreto Curmi was the day-
time porter. Id.
38. Porters are not required to maintain any written record regarding their daily
tasks, undertakings, or to memorialize any calls received to notify them of any conditions
throughout the property. Id, at para. 22. Mr. Rastoder was advised that, on June 10, 2019, Mr.
Curmi did not receive any notifications regarding any slippery condition, or otherwise, at the
loading dock following his early morning inspection and cleaning, up until Plaintiff’s accident,
which occurred at approximately 8:40 a.m. Id.
39. The freight operator is responsible for the freight elevator, which is located
at, and has direct access to, the loading dock at 85 Tenth. Id, at para. 23. When the elevator is not
in use, the freight operator will wait at the ground level of the loading dock. Id. Because of the
proximity, the freight operator is responsible to monitor the loading dock, when plausible, and to
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notify the porter on duty, directly, should they observe a condition which may necessitate
remediation. Id, at para. 24. On June 10, 2019, the freight operator was Stanford Taylor. Mr.
Rastoder spoke with Mr. Taylor who advised him he also didn’t receive any complaints of slippery
or dangerous conditions on the loading dock on June 10, 2019, prior to Plaintiff’s accident, nor did
he personally observe any dangerous conditions. Id.
40. Lastly, there is security personnel stationed at the loading dock who have
an obligation to notify the porter on duty of any potentially dangerous conditions that arise, to
ensure it is remediated. Id, at para. 25. On June 10, 2019, Willie Bowman, who is no longer
employed at the location, was the security guard stationed at the loading dock. Id, at para. 26. On
June 10, 2019, Mr. Rastoder spoke with Mr. Bowman, who informed him he neither observed any
condition which may have required remediation between the inception of his shift and Plaintiff’s
accident, nor did he receive any complaints regarding same. Id, at para 30.
41. Since the inception of his tenure as General Manager at the Premise, Mr.
Rastoder noted there have not been any repairs undertaken with respect to the loading dock. Id, at
para. 31. This includes the Q-metal decking. Id, at para. 32. Further, he never received any
complaints with respect to the loading dock, including the condition of the Q-metal decking. Id, at
para. 33. Lastly, there have not been any DOB citations issued with respect to the loading dock.
This includes the Q-metal decking. Id, at para. 34.
D. Affidavit of Peter Chen
42. On November 11, 2021, Peter Chen, P.E. visited the Property to conduct a site
inspection and personally observed the loading dock, took color photographs, took all pertinent
measurements, and tested the slip resistance of the floor of the loading dock which was entirely
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covered with metal diamond plating. See Peter Chen’s Affidavit, a copy of which is annexed as
Exhibit G. See Exhibit G, para. 6.
43. Additionally, Mr. Chen reviewed certain discovery, including Plaintiff’s
Summons and Complaint, Verified Bill of Particulars, the surveillance video depicting Plaintiff’s
accident2, photographs exchanged by Plaintiff and the Guardian Security Report. Id, at para. 4.
44. Based upon the site inspection and testing, engineering research,
engineering analysis, code review and lack of prior accidents, Mr. Chen determined the loading
dock add the premise was reasonably safe for use at the time of the accident. Id, para. 7. At the
time he arrived, the flooring of the docs and Bay had been cleaned with a water hose, and there
was a water hose reel located on the wall within the left Bay. Id, para. 9.
45. The loading dock consists of two bays sharing a common DOC level.
According to the photographs provided to him, Mr. Chen determined plaintiff's accident occurred
in the West Bay. Id.
46. The floor of the loading dock was equipped with a metal diamond plate
covering. Id. The diamond plate flooring consisted of anti-skid raised diamonds that were
approximately 3/4 in length, and 1/4 inch max in width, and 1/16 to 1/8 inch in height. Id, para.
11. The diamonds were arranged in 45 degree crisscross pattern spaced with coverage of less than
an inch square. Id.
47. Mr. Chen measured the slip resistance of the flooring using a calibrated
Mark III tribometer, Serial Number 42. Id, para. 12. The Mark III tribometer was calibrated per
ASTM F2508-13 Standard Practice for Validation, Calibration and Certification of Walkway
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Tribometer's Using Reference Tiles, and the incident flooring was tested under both wet and dry
conditions. Id.
48. Calibration determined that the Mark III, Serial No. 42, tribometer had a
slip resistance threshold value of .43. Id. The .43 slip resistance value reflects the margin of safety
given the dichotomy between the reference styles distinguishing between a slip and non-slip
condition. Id. The Mark III, Serial No. 42, with set up to use a flat grooved Neolight test foot to
determine slip resistance in accordance with standard testing protocol. Id.
49. Based on calibrated engineering testing, the cause of the accident was not
the slip resistant flooring. Id, at 13. The loading dock flooring was slip resistant when tested under
both wet and dry conditions, which measured to be .69 and .59 (average in 4 ordinate directions)
dry and wet, respectively with a standard deviation of .01. This was verified empirically with
ordinary footwear. Id.
50. Further, Mr. Chen opined the loading dock at the premise did not violate
any applicable codes. Id, para 14. Based on code research and Mr. Chen site inspection, the loading
dock was largely subject to the 1968 NYC building codes for construction and maintenance. Id.
There was no evidence of any kind of building code violation for the loading dock or any kind of
maintenance issue that would have resulted in the accident. Id, para 15.
51. Pursuant to the code, all that was required was the loading dock area be
designed for the structural loads of trucks slash shipping vehicles, the materials being loaded or
unloaded, and any device is being used for loading and unloading. Id. There were no handrail slash
guardrail requirements for the edge of the loading dock as the loading dock was not part of any
stairs or ramps. Id.
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52. Further, under the 1968 NYC code, there is no requirement for slip resistant
flooring for the incident area at the premise. Id, para 17.
53. Plaintiff’s Verified Bill of Particulars alleges 85 Tenth violated various
provisions of Title 27 of the NYC Administrative Codes; specifically, § § 27-375, 27-292, 501 and
27-232. Title 27 of the NYC Administrative Codes was and is the 1968 NYC Building Code. Id,
at 18.
54. Section 27-232 of the Building Code of the City of New York is the
definitions section of the NYC Building Code and does not promulgate any kind of standards upon
the loading dock area. Therefore, there can be no violation pursuant to this Section. Id, at 19.
55. Section 27-375 of the 1968 NYC Building Code provides requirements for
interior stairs. Id, at para. 20. According to the code, an “interior stair” was a required stair within
a building leading to an Exit. Id. However, this code is not applicable as the loading dock was not
a part of interior stairs as defined by the code, as it was not a required element, and was not a part
of any kind of means of egress for the building to a required exit. Id.
56. Section §27-929 of the NYC Building Code deals with Fire Department
Access, and is inapplicable because the loading dock area was not considered a part of the fire
department access. Id, at 22.
57. Lastly, Plaintiff alleges a violation of §501 of the Building Code of the City
of New York; however, no such code exists. Id, at para. 21. Mr. Chen opines the code believed to
be alleged here would be the NYC Fire Code §501, which deals with fire operations features of a
building to ensure safe and effective firefighting operations. Id. Based on codes research and site
inspection, the loading dock area was not a part of a means of egress or means of escape for the
building and, therefore, was not subject to the 2014 NYC Fire Codes as with regards to means of
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egress flooring. Id. That being said, the flooring would meet the 2014 NYC Fire Codes as the
flooring was slip resistant when both wet and dry. Id.
58. Instead, Mr. Chen opines that the cause of plaintiff’s accident was user
error. Id, para. 23. Upon review of the photographs and video surveillance footage provided to
him, Mr. Chen iterates that plaintiff was attempting to unload the pallet Jack from his truck, but
failed to raise the pallet jack high enough two clear the edge of his truck. Id. Mr. Chen further
opined that this was necessary to overcome the drag force created, given the height differential
between plaintiff’s truck and the slightly lower level of the loading dock. Id.
59. Mr. Chen, using engineering analysis was able to determine plaintiff was
utilizing a standard pallet, which is approximately 48-inch by 40-inch and weighs approximately
37 pounds. Id, para. 24. Further the pallet Plaintiff was unloading from the truck was stacked to a
reference height of approximately 6 feet. Id, para. 25. Minus the pallet thickness and relative
difference between the truck and the loading dock, the height of the stacked materials on the pallet
was conservatively around 5 feet. Id. As such, pursuant to the Standard Pallet Sizes References
Guide from Greenway Products & Services, Inc., the usage rank was considered to be a 4 for “dry
goods, dairy, produce”. Id. Therefore, the estimated weight of the pallet would be 833 to 995
pounds. Id.
60. Based on known rolling resistance values of wheels and steel plate, the
estimated pallet jack horizontal pull force would range depending on wheel composition (hard
rubber or polyurethane). Id, at 27. If hard rubber, the pull force would range from 252 to 303
pounds and therefore, more likely than not, the wheels of the pallet jack were not hard rubber. Id.
More likely than not, the pallet jack wheels were composed of polyurethane, which would result
in a horizontal pull force ranging from 25 to 57 pounds. Id.
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61. However, Mr. Chen further opined that based on known wood and steel
friction values, the horizontal pull force of the pallet jack will greatly increase to a range of 333 to
646 pounds. Id, at 28. Even assuming a 50% reduction in horizontal forces due to a split of vertical
forces between the pallet jack wheels and the pallet jack contacting the edge of the truck, the
horizontal pull force would still range from approximately 167 to 323 pounds. Id.
62. Mr. Chen iterated that even if we were to assume Plaintiff could translate
all of his weight into a horizontal pull force, with a slip resistance value measured at 0.59 wet and
0.69 dry, the plaintiff would have to pull or weigh an equivalent of 241 to 547 pounds to overcome
the friction created by the pallet to the truck, assuming a conservative 50% reduction in horizontal
force. Id, at para. 29.
63. From the NIOSH lifting index, under the best ideal body lifting position,
the recommended weight limit (RWL) for a two-handed lift is 51 pounds. Id, at para. 30.
Attempting to pull even the conservative estimate of 167 to 323 pounds was far beyond known
safety standards for weightlifting in the workplace. Id.
64. To overcome the huge drag force created when the pallet wheel caught on
the edge of the truck, the pallet forks and pallet needed to be raised higher to account for the height
differential between the truck and loading dock. Id, para. 31.
65. The difference in elevation between Plaintiff’s truck and the loading dock,
when confronted with the unraised pallet jack, created a drag force and made it so that it would only
be reasonably safe to pull a load in the range of up to approximately 50 pounds. Upon encountering
the large horizontal force, Plaintiff should have either raised the pallet, or stopped and begun unpacking
and unloading the pallet (from the top down). Once the pallet could safely be moved to the loading
dock level, the pallet could have been repacked and reloaded. Id, at para. 31.
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66. Based on Mr. Chen’s site inspection and testing, engineering research,
engineering analysis, code review, and lack of history of any kind of issue, he was able to conclude
within a degree of engineering certainty that the loading dock of the premises was reasonably safe for
use at the time of the incident when used in the manner in which the loading dock was designed. Id,
para. 35.
DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT
I. PLAINTIFF CANNOT ESTABLISH THE EXISTENCE OF A
DEFECTIVE CONDITION WHICH GAVE RISE TO THE ALLEGED ACCIDENT
67. There is no evidence capable to support Plaintiff’s contention that
Defendant was negligent in its ownership, operation, control, maintenance and management of the
loading dock at the Premise.
68. To impose liability, a plaintiff must prove (1) that the defendant owed a duty
to plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. Pordon v. Health
Insurance Plan of Greater New York, 2008 N.Y. Misc. LEXIS 10321. Whether a dangerous condition
exists so as to create liability depends on the facts and circumstances of each case and is generally a
question of fact for the jury. Tincere v. County of Suffolk, 90 N.Y2d 976, 688 N.E.2d 489,665 N.Y.S.2d
615 [1997], citing Hecht v. City of New York, 60 N.Y.2d 57, 454 N.E.2d 527, 467 N.Y.S.2d 187 [1983]
69. From the outset, it must be noted that Plaintiff utterly failed to prove,
through admissible evidence, Defendant is negligent as he cannot establish there was a slippery,
oily, or other wet condition which caused him to slip and fall, nor can he show that the loading
dock, itself, was dangerous or defective.
70. In his Verified Bill of Particulars, Plaintiff alleged he was caused to slip and
fall due to a slippery, wet, slick and oily condition present on the loading dock. However,
subsequent discovery makes clear that Plaintiff does not know what caused him to slip and fall.
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71. At deposition, Plaintiff initially testified he slipped and fell due to a “dark
stain” which he alleged was present on the surface of the loading dock. While it didn’t have a
discernable figure, the stain was approximately two feet in length, and one and a half feet in width;
it did not have any depth. Exhibit D, page 64-65, lines 24-14.
72. However, Plaintiff’s subsequent testimony makes clear that this “dark stain”
did not cause his accident. Instead, when further asked to describe the stain in relation to his fall,
Plaintiff back-tracked, denying it as the cause of his incident, and stating “the area was slippery
perhaps not the stain itself.” Id, at 82-83:22-11.
73. It was also raining that morning. Exhibit D. Notably, when asked, Plaintiff
admitted it is plausible his shoes could have already been wet due to deliveries he made prior to
presenting to 85 Tenth. Id.
74. Mirza Rastoder, the Property Manager for 85 Tenth, was present at the
building at the time of Plaintiff’s slip and fall and responded to the loading dock after receiving a
call from the security personnel stationed there regarding what transpired. See Exhibit H, at para.
18. When he arrived, Mr. Rastoder saw Plaintiff seated on the ground. Id, at para. 24.
75. While he attempted to speak with Plaintiff to determine what happened, the
language barrier made it impossible to effectively communicate. Id, at para. 25. However, Mr.
Rastoder inspected the floor of the loading dock, and did not see any liquid, oil or other substance
to explain what caused Plaintiff to slip and fall, nor did he notice any wet spots present on
Plaintiff’s clothing. Id.
76. Following the incident, Mr. Rastoder arranged for the opportunity to view
and extrapolate security camera footage depicting Plaintiff’s accident. See Exhibit I. This video
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shows Plaintiff, his truck and the loading dock, and captures Plaintiff’s fall, in addition to the
minutes immediately prior to, and up to several seconds after.
77. The video footage, entirely fails to evidence any liquid, oil or other
substance which caused Plaintiff’s slip and fall, nor does it depict Plaintiff slipping on any “dark
stain.” Instead, it appears to depict the wheel of Plaintiff’s pallet jack become lodged between the
back of
Preview
FILED: NEW YORK COUNTY CLERK 07/15/2022 03:18 PM INDEX NO. 157001/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/15/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X OSCAR A. SOSA, Index No.: 157001/2019 Plaintiff, -against- AFFIRMATION IN SUPPORT 85 TENTH AVENUE ASSOCIATES, L.L.C., Defendant. --------------------------------------------------------------------X MICHAEL J. CARRO, an attorney duly admitted to practice law in and before the Courts of the State of New York affirms the following under the penalties of perjury: INTRODUCTION 1. I am a partner at the firm LONDON FISCHER LLP, attorneys for Defendant 85 TENTH AVENUE ASSOCIATES, L.L.C. (“Defendant”). As such, I am fully familiar with the facts set forth in this Affirmation based upon my review of the file maintained by this office. 2. I submit this Affirmation in support of Defendants’ motion for an Order: a. Pursuant to Rule 3212 of the Civil Practice Law and Rules (“CPLR”), granting summary judgment to Defendant, dismissing each cause of action asserted against it, on the grounds that there exists no material issue of fact regarding Defendant’s liability and because Defendants are entitled to judgment as a matter of law; b. Pursuant to Rule 3212 of the Civil Practice Law and Rules (“CPLR”), granting summary judgment to Defendant, dismissing each cause of action asserted against it, on the grounds that Defendants had no notice of the allegedly defective condition; {N2167639.1 } 1 of 23 FILED: NEW YORK COUNTY CLERK 07/15/2022 03:18 PM INDEX NO. 157001/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/15/2022 c. Directing the Clerk of the Court to enter judgement dismissing each claim against Defendant in this action; and d. Granting Defendant such other, further and different relief as this Court deems just and proper. NATURE OF THE CASE 3. This action arises out of personal injuries allegedly sustained by plaintiff, Oscar A. Sosa (“Plaintiff”), a Gargulo Produce delivery person, on June 10, 2019. At the time of the injury, Plaintiff was present at the loading dock of the property located at 85 Tenth Avenue, New York, New York (the “Premise”), in order to deliver produce to restaurants operating on the Premise. SCHEDULE OF EXHIBITS EXHIBIT A: Complaint dated July 17, 2019 EXHIBIT B: Answer dated October 10, 2019 EXHIBIT C: Bill of Particulars dated December 12, 2019 EXHIBIT D: Plaintiff’s Deposition dated June 16, 2021 EXHIBIT E: Defendant’s Deposition dated December 21, 2021 EXHIBIT F: Note of Issue and Certificate of Readiness dated May 18, 2022 EXHIBIT G: Affidavit of Peter Chen EXHIBIT H: Affidavit of Mirza Rastoder EXHIBIT I: Surveillance Video of Plaintiff’s Accident EXHIBIT J: Photograph from Plaintiff’s EBT PROCEDURAL HISTORY 4. Plaintiff filed his Summons and Verified Complaint against Defendant on July 17, 2019, a copy of which is annexed as Exhibit A, asserting a single cause of action for Common Law negligence. 5. Defendant joined issue on October 10, 2019, by way of Verified Answer, a copy of which is annexed as Exhibit B, denying all material allegations. {N2167639.1 } 2 of 23 FILED: NEW YORK COUNTY CLERK 07/15/2022 03:18 PM INDEX NO. 157001/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/15/2022 6. On December 12, 2019, Plaintiff served his Verified Bill of Particulars, a copy of which is annexed as Exhibit C, and alleged he was caused to slip and fall due to a slippery, wet, slick and oily condition present on the loading dock. Plaintiff further alleged Defendant had both actual and constructive notice of the alleged condition. 7. Plaintiff’s deposition occurred on June 16, 2021, a copy of which is annexed as Exhibit D. 8. Defendant’s deposition occurred on, a copy of which is annexed as Exhibit E. 9. Plaintiff filed the Note of Issue and Certificate of Readiness on May 18, 2022, a copy of which is annexed as Exhibit F. FACTS A. The Accident 10. Plaintiff is currently employed by Gargulo Produce (“Gargulo”) as a truck driver, and has worked in this capacity for over nine and a half years, including on the date of his accident. See Exhibit D, 14:9-15. 11. Plaintiff’s accident occurred on June 10, 2019, at approximately 8:30 a.m. See Exhibit “C” at ¶ 3. Specifically, Plaintiff was present at the loading dock of the Premise. Id, at ¶ 4. 12. At deposition, Plaintiff testified he began his shift at 4:00 a.m., where he first reported to Gargulo. See Exhibit D at 18:15-19. He iterated that, upon arrival, he first went to the office to get his route papers, then he got his truck and left to complete his scheduled deliveries. Id, at 20:16-17. Plaintiff was not responsible to load the produce into his truck as that task was completed by a different Gargulo employee. Id, at 20:23-25. {N2167639.1 } 3 of 23 FILED: NEW YORK COUNTY CLERK 07/15/2022 03:18 PM INDEX NO. 157001/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/15/2022 13. Further, Plaintiff always drove the same truck, and worked with an assistant. Id, 21:2-8. His assistant that day was “Hector”, who no longer works for Gargulo. Id, at 21:12-14. 14. Plaintiff’s truck is approximately 24 feet long and approximately 10-12 feet high. Id, at 31:18-23. To access the box which housed the pallets, Plaintiff was required to exit the vehicle, and go around to the back. Id, at 31-32:24-9. The box, including the floors, were composed of metal. Id, at 32:16-20. 15. Plaintiff testified that he had been to the Premise, prior, and would make deliveries at the Premise approximately three times per week. Id, at 25:7-13. He always parked the truck in the same place. Id, at 25:14-16. 16. When they arrived at the Premise on the date of the accident, Plaintiff was required to modify the load on the truck in order to rearrange the pallets to gain access to those that were being delivered. Id, at 26-27:13- 2. Plaintiff and his assistant were to make two deliveries at the Premise, one of which was for the High Line. Id, at 29:8. To modify the load, Plaintiff utilized a pallet jack. Id, at 26:16. 17. After Plaintiff gathered the necessary pallets, he began to pull the pallet jack from the inside of the box to the floor of the loading dock when he slipped and fell. Id, at 35: 6-8. He was walking backwards and landed on the floor of the loading dock when he fell. Id, at 35:9-12, 36:16-18. B. Plaintiff’s Testimony 18. Plaintiff does not know what caused him to slip. Id, at 35:13-14. 19. After he fell, he testified that he saw “a dark stain.” Id, at 35:15-18. Plaintiff initially saw the stain when he first got to the back of the truck. Id, 36:19-22. He did not mention {N2167639.1 } 4 of 23 FILED: NEW YORK COUNTY CLERK 07/15/2022 03:18 PM INDEX NO. 157001/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/15/2022 the stain to anyone, but testified “[both he and his assistant] knew the existence of the stain.” Id, 38:13-14. 20. When asked to clarify whether the use of the phrase “stain” referred to mere discoloration or an oily slippery substance, Plaintiff merely responded “I see other companies making deliveries and they unload fish, meat. So when we get there, we try to notice these things to avoid stepping in it.” Id, at 38-39:15-3. 21. With respect to the dimensions of the stain, Plaintiff testified that the stain didn’t have a discernable figure, but was approximately two feet in length, and one and a half feet in width; it did not have any depth. Id, at 64-65:24-14. 22. Although Plaintiff discusses the stain in detail when asked what led to his accident, his subsequent testimony makes clear that the stain did not cause him to fall, and further highlights that Plaintiff does not know what condition caused him to slip. A summary of pertinent testimony is as follows: Pages 68-69 22-11, referencing Defendant’s Exhibit B, a copy of which is annexed as Exhibit J. Q. Sir, you have been provided with a color copy as Defendant’s Exhibit B; is that correct? A. Yes. Mr. Melendez: Counsel, do you agree that’s accurate? Mr. Lawrence: Yes. Q. Do you see in that photograph the stain you said you slipped on? A. It’s not that I’m saying that I slipped there, yes. {N2167639.1 } 5 of 23 FILED: NEW YORK COUNTY CLERK 07/15/2022 03:18 PM INDEX NO. 157001/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/15/2022 Q. You are saying that is not where you slipped? A. Exactly. Q. Can you circle in the area where you slipped? (Witness complies) Q. Is that where the stain is? A. No. The stain was a little more to the side. Q. Okay. You can put the photograph to the side now…. Page 82-83, lines 22-11 Q. Is it correct that the stain did not cause you to slip and fall? A. The area was slippery perhaps not the stain itself. A lot of people pass by there. Q. At the time you were unloading the truck, isn’t it correct that no one else was passing by? A. At that time – – at that moment. Q. You also said that it was raining that morning. Is it possible that your shoes were wet from making that delivery that morning? A. Could be. 23. At the time of his accident, Plaintiff was wearing a t-shirt, shorts, and sketcher brand sneakers. Id, at 23:9-13. 24. Plaintiff’s accident was caught on camera, a copy of which is annexed as Exhibit I. C. Affidavit of Mirza Rastoder 25. Further, defendants had no notice of a defective condition at the loading dock at the time of plaintiff’s accident. See Mirza Rastoder’s Affidavit, annexed as Exhibit H. {N2167639.1 } 6 of 23 FILED: NEW YORK COUNTY CLERK 07/15/2022 03:18 PM INDEX NO. 157001/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/15/2022 26. Mr. Rastoder is a General Manager for Related Management Company, and at the time of plaintiff's accident, the Premise. See Exhibit H, para. 2. 27. As General Manager, Mr. Rastoder has various responsibilities, amongst which require he supervise the employees responsible for the general maintenance. Id, at para. 3. On June 10, 2019, Mr. Rastoder was physically present the Premise; while he did not personally witness Plaintiff’s accident, he responded to the incident alert and prepared the initial investigation. Id, at para. 4. 28. 85 Tenth is a commercial building which leases out office and retail space, including three restaurants. Id, para. 6. It also has a loading dock which contains two separate bay (east and west, respectively) areas to receive deliveries; for general tenants, the loading dock is open Monday through Friday from 8:00 a.m. and closes at 6:00 p.m., including on June 10, 2019. Tenants occasionally request off-hour and weekend deliveries, which are typically accommodated when practicable. Id. 29. The loading dock additionally has two levels – the ground and the platform. Id, at para. 7. Both the ground level and the platform are constructed with concrete, but the platform surface is coated by a Q-metal decking surface which is metal with diamond plating. Id. 30. The ceiling immediately above the loading dock is made of terra cotta, and contains piping for an electrical sprinkler as well as an HVAC duct. Id, at para. 8. The duct work in the ceiling is insulated; in the event a leak did occur, the insulation would absorb all moisture to prevent water from dripping from the HVAC unit to the ground below. Id. 31. Two cameras are situated in the loading dock – one to record operations at each respective bay. Id, at para. 9. The cameras and DVR are manufactured by Avigilon. Id. The {N2167639.1 } 7 of 23 FILED: NEW YORK COUNTY CLERK 07/15/2022 03:18 PM INDEX NO. 157001/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/15/2022 cameras are operational 24/7, including on June 10, 2019. Id. Further, recordings are preserved through a DVR, which is maintained at 85 Tenth, for approximately 10 days. After that period, the recordings are taped over unless first extracted. Id. 32. On June 10, 2019, the cameras were operational, and captured Plaintiff’s accident, which occurred in the west bay of the loading dock at approximately 8:40 a.m., less than an hour after the dock opened for the day.1 Id, at para. 10. While Mr. Rastoder did not witness Plaintiff’s accident, the security personnel stationed at the loading dock notified him directly, using a radio, within moments of the occurrence. Id. 33. Mr. Rastoder further iterated that when he arrived at the loading dock, he saw Plaintiff seated on the ground. Id. He attempted to speak with Plaintiff to determine what happened, but had trouble communicating with him due to the language barrier. Id. All Mr. Rastoder was able to discern was that he had slipped and fell, injuring his leg. Id. 34. Further, Mr. Rastoder opined that he personally inspected the floor of the loading dock at that time but found the ground was dry, and he did not see any liquid substance, oil or other substance to explain what caused Plaintiff to slip and fall. Id, at para. 12. Additionally, Plaintiff’s clothing appeared to be dry. Id. 35. There are three members of the maintenance staff at the Premise: (1) a daytime porter; (2) afternoon/nighttime porter; (3) and the freight operator. Id, at para. 17. The porters are responsible for the maintenance and cleaning of various areas throughout the building, including the loading dock. Id, at para. 18. The daytime porter is on duty from 6:00 a.m. to 2:30 1 A copy of the video surveillance footage is available at https://londonfischer.sharefile.com/i/i8dfda2c081540328 and are reproduced on disk and annexed to the motion papers as Exhibit J. {N2167639.1 } 8 of 23 FILED: NEW YORK COUNTY CLERK 07/15/2022 03:18 PM INDEX NO. 157001/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/15/2022 p.m., including on June 10, 2019. Id. The afternoon/nighttime porter is on duty from 2:30 p.m. to 10:30 p.m., including June 10, 2019. Id. 36. The porters are responsible to inspect and clean the loading dock on a daily basis, a minimum of twice per day, including on June 10, 2019. Id, at para. 19. The daytime porter is responsible to conduct the first inspection of the loading dock and undertake its cleaning prior to opening for deliveries at 8:00 a.m. Id. The second required inspection and cleaning is conducted by the afternoon/nighttime porter after the loading dock is closed to deliveries, after 6:00 p.m. Id. 37. Each morning, at 6:00 a.m., including June 10, 2019, the daytime porter, starts the workday by bringing garbage bins to each respective tenant. Id, at para. 20. Immediately thereafter he inspects and cleans the loading dock. On June 10, 2019, Loreto Curmi was the day- time porter. Id. 38. Porters are not required to maintain any written record regarding their daily tasks, undertakings, or to memorialize any calls received to notify them of any conditions throughout the property. Id, at para. 22. Mr. Rastoder was advised that, on June 10, 2019, Mr. Curmi did not receive any notifications regarding any slippery condition, or otherwise, at the loading dock following his early morning inspection and cleaning, up until Plaintiff’s accident, which occurred at approximately 8:40 a.m. Id. 39. The freight operator is responsible for the freight elevator, which is located at, and has direct access to, the loading dock at 85 Tenth. Id, at para. 23. When the elevator is not in use, the freight operator will wait at the ground level of the loading dock. Id. Because of the proximity, the freight operator is responsible to monitor the loading dock, when plausible, and to {N2167639.1 } 9 of 23 FILED: NEW YORK COUNTY CLERK 07/15/2022 03:18 PM INDEX NO. 157001/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/15/2022 notify the porter on duty, directly, should they observe a condition which may necessitate remediation. Id, at para. 24. On June 10, 2019, the freight operator was Stanford Taylor. Mr. Rastoder spoke with Mr. Taylor who advised him he also didn’t receive any complaints of slippery or dangerous conditions on the loading dock on June 10, 2019, prior to Plaintiff’s accident, nor did he personally observe any dangerous conditions. Id. 40. Lastly, there is security personnel stationed at the loading dock who have an obligation to notify the porter on duty of any potentially dangerous conditions that arise, to ensure it is remediated. Id, at para. 25. On June 10, 2019, Willie Bowman, who is no longer employed at the location, was the security guard stationed at the loading dock. Id, at para. 26. On June 10, 2019, Mr. Rastoder spoke with Mr. Bowman, who informed him he neither observed any condition which may have required remediation between the inception of his shift and Plaintiff’s accident, nor did he receive any complaints regarding same. Id, at para 30. 41. Since the inception of his tenure as General Manager at the Premise, Mr. Rastoder noted there have not been any repairs undertaken with respect to the loading dock. Id, at para. 31. This includes the Q-metal decking. Id, at para. 32. Further, he never received any complaints with respect to the loading dock, including the condition of the Q-metal decking. Id, at para. 33. Lastly, there have not been any DOB citations issued with respect to the loading dock. This includes the Q-metal decking. Id, at para. 34. D. Affidavit of Peter Chen 42. On November 11, 2021, Peter Chen, P.E. visited the Property to conduct a site inspection and personally observed the loading dock, took color photographs, took all pertinent measurements, and tested the slip resistance of the floor of the loading dock which was entirely {N2167639.1 } 10 of 23 FILED: NEW YORK COUNTY CLERK 07/15/2022 03:18 PM INDEX NO. 157001/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/15/2022 covered with metal diamond plating. See Peter Chen’s Affidavit, a copy of which is annexed as Exhibit G. See Exhibit G, para. 6. 43. Additionally, Mr. Chen reviewed certain discovery, including Plaintiff’s Summons and Complaint, Verified Bill of Particulars, the surveillance video depicting Plaintiff’s accident2, photographs exchanged by Plaintiff and the Guardian Security Report. Id, at para. 4. 44. Based upon the site inspection and testing, engineering research, engineering analysis, code review and lack of prior accidents, Mr. Chen determined the loading dock add the premise was reasonably safe for use at the time of the accident. Id, para. 7. At the time he arrived, the flooring of the docs and Bay had been cleaned with a water hose, and there was a water hose reel located on the wall within the left Bay. Id, para. 9. 45. The loading dock consists of two bays sharing a common DOC level. According to the photographs provided to him, Mr. Chen determined plaintiff's accident occurred in the West Bay. Id. 46. The floor of the loading dock was equipped with a metal diamond plate covering. Id. The diamond plate flooring consisted of anti-skid raised diamonds that were approximately 3/4 in length, and 1/4 inch max in width, and 1/16 to 1/8 inch in height. Id, para. 11. The diamonds were arranged in 45 degree crisscross pattern spaced with coverage of less than an inch square. Id. 47. Mr. Chen measured the slip resistance of the flooring using a calibrated Mark III tribometer, Serial Number 42. Id, para. 12. The Mark III tribometer was calibrated per ASTM F2508-13 Standard Practice for Validation, Calibration and Certification of Walkway {N2167639.1 } 11 of 23 FILED: NEW YORK COUNTY CLERK 07/15/2022 03:18 PM INDEX NO. 157001/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/15/2022 Tribometer's Using Reference Tiles, and the incident flooring was tested under both wet and dry conditions. Id. 48. Calibration determined that the Mark III, Serial No. 42, tribometer had a slip resistance threshold value of .43. Id. The .43 slip resistance value reflects the margin of safety given the dichotomy between the reference styles distinguishing between a slip and non-slip condition. Id. The Mark III, Serial No. 42, with set up to use a flat grooved Neolight test foot to determine slip resistance in accordance with standard testing protocol. Id. 49. Based on calibrated engineering testing, the cause of the accident was not the slip resistant flooring. Id, at 13. The loading dock flooring was slip resistant when tested under both wet and dry conditions, which measured to be .69 and .59 (average in 4 ordinate directions) dry and wet, respectively with a standard deviation of .01. This was verified empirically with ordinary footwear. Id. 50. Further, Mr. Chen opined the loading dock at the premise did not violate any applicable codes. Id, para 14. Based on code research and Mr. Chen site inspection, the loading dock was largely subject to the 1968 NYC building codes for construction and maintenance. Id. There was no evidence of any kind of building code violation for the loading dock or any kind of maintenance issue that would have resulted in the accident. Id, para 15. 51. Pursuant to the code, all that was required was the loading dock area be designed for the structural loads of trucks slash shipping vehicles, the materials being loaded or unloaded, and any device is being used for loading and unloading. Id. There were no handrail slash guardrail requirements for the edge of the loading dock as the loading dock was not part of any stairs or ramps. Id. {N2167639.1 } 12 of 23 FILED: NEW YORK COUNTY CLERK 07/15/2022 03:18 PM INDEX NO. 157001/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/15/2022 52. Further, under the 1968 NYC code, there is no requirement for slip resistant flooring for the incident area at the premise. Id, para 17. 53. Plaintiff’s Verified Bill of Particulars alleges 85 Tenth violated various provisions of Title 27 of the NYC Administrative Codes; specifically, § § 27-375, 27-292, 501 and 27-232. Title 27 of the NYC Administrative Codes was and is the 1968 NYC Building Code. Id, at 18. 54. Section 27-232 of the Building Code of the City of New York is the definitions section of the NYC Building Code and does not promulgate any kind of standards upon the loading dock area. Therefore, there can be no violation pursuant to this Section. Id, at 19. 55. Section 27-375 of the 1968 NYC Building Code provides requirements for interior stairs. Id, at para. 20. According to the code, an “interior stair” was a required stair within a building leading to an Exit. Id. However, this code is not applicable as the loading dock was not a part of interior stairs as defined by the code, as it was not a required element, and was not a part of any kind of means of egress for the building to a required exit. Id. 56. Section §27-929 of the NYC Building Code deals with Fire Department Access, and is inapplicable because the loading dock area was not considered a part of the fire department access. Id, at 22. 57. Lastly, Plaintiff alleges a violation of §501 of the Building Code of the City of New York; however, no such code exists. Id, at para. 21. Mr. Chen opines the code believed to be alleged here would be the NYC Fire Code §501, which deals with fire operations features of a building to ensure safe and effective firefighting operations. Id. Based on codes research and site inspection, the loading dock area was not a part of a means of egress or means of escape for the building and, therefore, was not subject to the 2014 NYC Fire Codes as with regards to means of {N2167639.1 } 13 of 23 FILED: NEW YORK COUNTY CLERK 07/15/2022 03:18 PM INDEX NO. 157001/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/15/2022 egress flooring. Id. That being said, the flooring would meet the 2014 NYC Fire Codes as the flooring was slip resistant when both wet and dry. Id. 58. Instead, Mr. Chen opines that the cause of plaintiff’s accident was user error. Id, para. 23. Upon review of the photographs and video surveillance footage provided to him, Mr. Chen iterates that plaintiff was attempting to unload the pallet Jack from his truck, but failed to raise the pallet jack high enough two clear the edge of his truck. Id. Mr. Chen further opined that this was necessary to overcome the drag force created, given the height differential between plaintiff’s truck and the slightly lower level of the loading dock. Id. 59. Mr. Chen, using engineering analysis was able to determine plaintiff was utilizing a standard pallet, which is approximately 48-inch by 40-inch and weighs approximately 37 pounds. Id, para. 24. Further the pallet Plaintiff was unloading from the truck was stacked to a reference height of approximately 6 feet. Id, para. 25. Minus the pallet thickness and relative difference between the truck and the loading dock, the height of the stacked materials on the pallet was conservatively around 5 feet. Id. As such, pursuant to the Standard Pallet Sizes References Guide from Greenway Products & Services, Inc., the usage rank was considered to be a 4 for “dry goods, dairy, produce”. Id. Therefore, the estimated weight of the pallet would be 833 to 995 pounds. Id. 60. Based on known rolling resistance values of wheels and steel plate, the estimated pallet jack horizontal pull force would range depending on wheel composition (hard rubber or polyurethane). Id, at 27. If hard rubber, the pull force would range from 252 to 303 pounds and therefore, more likely than not, the wheels of the pallet jack were not hard rubber. Id. More likely than not, the pallet jack wheels were composed of polyurethane, which would result in a horizontal pull force ranging from 25 to 57 pounds. Id. {N2167639.1 } 14 of 23 FILED: NEW YORK COUNTY CLERK 07/15/2022 03:18 PM INDEX NO. 157001/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/15/2022 61. However, Mr. Chen further opined that based on known wood and steel friction values, the horizontal pull force of the pallet jack will greatly increase to a range of 333 to 646 pounds. Id, at 28. Even assuming a 50% reduction in horizontal forces due to a split of vertical forces between the pallet jack wheels and the pallet jack contacting the edge of the truck, the horizontal pull force would still range from approximately 167 to 323 pounds. Id. 62. Mr. Chen iterated that even if we were to assume Plaintiff could translate all of his weight into a horizontal pull force, with a slip resistance value measured at 0.59 wet and 0.69 dry, the plaintiff would have to pull or weigh an equivalent of 241 to 547 pounds to overcome the friction created by the pallet to the truck, assuming a conservative 50% reduction in horizontal force. Id, at para. 29. 63. From the NIOSH lifting index, under the best ideal body lifting position, the recommended weight limit (RWL) for a two-handed lift is 51 pounds. Id, at para. 30. Attempting to pull even the conservative estimate of 167 to 323 pounds was far beyond known safety standards for weightlifting in the workplace. Id. 64. To overcome the huge drag force created when the pallet wheel caught on the edge of the truck, the pallet forks and pallet needed to be raised higher to account for the height differential between the truck and loading dock. Id, para. 31. 65. The difference in elevation between Plaintiff’s truck and the loading dock, when confronted with the unraised pallet jack, created a drag force and made it so that it would only be reasonably safe to pull a load in the range of up to approximately 50 pounds. Upon encountering the large horizontal force, Plaintiff should have either raised the pallet, or stopped and begun unpacking and unloading the pallet (from the top down). Once the pallet could safely be moved to the loading dock level, the pallet could have been repacked and reloaded. Id, at para. 31. {N2167639.1 } 15 of 23 FILED: NEW YORK COUNTY CLERK 07/15/2022 03:18 PM INDEX NO. 157001/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/15/2022 66. Based on Mr. Chen’s site inspection and testing, engineering research, engineering analysis, code review, and lack of history of any kind of issue, he was able to conclude within a degree of engineering certainty that the loading dock of the premises was reasonably safe for use at the time of the incident when used in the manner in which the loading dock was designed. Id, para. 35. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT I. PLAINTIFF CANNOT ESTABLISH THE EXISTENCE OF A DEFECTIVE CONDITION WHICH GAVE RISE TO THE ALLEGED ACCIDENT 67. There is no evidence capable to support Plaintiff’s contention that Defendant was negligent in its ownership, operation, control, maintenance and management of the loading dock at the Premise. 68. To impose liability, a plaintiff must prove (1) that the defendant owed a duty to plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. Pordon v. Health Insurance Plan of Greater New York, 2008 N.Y. Misc. LEXIS 10321. Whether a dangerous condition exists so as to create liability depends on the facts and circumstances of each case and is generally a question of fact for the jury. Tincere v. County of Suffolk, 90 N.Y2d 976, 688 N.E.2d 489,665 N.Y.S.2d 615 [1997], citing Hecht v. City of New York, 60 N.Y.2d 57, 454 N.E.2d 527, 467 N.Y.S.2d 187 [1983] 69. From the outset, it must be noted that Plaintiff utterly failed to prove, through admissible evidence, Defendant is negligent as he cannot establish there was a slippery, oily, or other wet condition which caused him to slip and fall, nor can he show that the loading dock, itself, was dangerous or defective. 70. In his Verified Bill of Particulars, Plaintiff alleged he was caused to slip and fall due to a slippery, wet, slick and oily condition present on the loading dock. However, subsequent discovery makes clear that Plaintiff does not know what caused him to slip and fall. {N2167639.1 } 16 of 23 FILED: NEW YORK COUNTY CLERK 07/15/2022 03:18 PM INDEX NO. 157001/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/15/2022 71. At deposition, Plaintiff initially testified he slipped and fell due to a “dark stain” which he alleged was present on the surface of the loading dock. While it didn’t have a discernable figure, the stain was approximately two feet in length, and one and a half feet in width; it did not have any depth. Exhibit D, page 64-65, lines 24-14. 72. However, Plaintiff’s subsequent testimony makes clear that this “dark stain” did not cause his accident. Instead, when further asked to describe the stain in relation to his fall, Plaintiff back-tracked, denying it as the cause of his incident, and stating “the area was slippery perhaps not the stain itself.” Id, at 82-83:22-11. 73. It was also raining that morning. Exhibit D. Notably, when asked, Plaintiff admitted it is plausible his shoes could have already been wet due to deliveries he made prior to presenting to 85 Tenth. Id. 74. Mirza Rastoder, the Property Manager for 85 Tenth, was present at the building at the time of Plaintiff’s slip and fall and responded to the loading dock after receiving a call from the security personnel stationed there regarding what transpired. See Exhibit H, at para. 18. When he arrived, Mr. Rastoder saw Plaintiff seated on the ground. Id, at para. 24. 75. While he attempted to speak with Plaintiff to determine what happened, the language barrier made it impossible to effectively communicate. Id, at para. 25. However, Mr. Rastoder inspected the floor of the loading dock, and did not see any liquid, oil or other substance to explain what caused Plaintiff to slip and fall, nor did he notice any wet spots present on Plaintiff’s clothing. Id. 76. Following the incident, Mr. Rastoder arranged for the opportunity to view and extrapolate security camera footage depicting Plaintiff’s accident. See Exhibit I. This video {N2167639.1 } 17 of 23 FILED: NEW YORK COUNTY CLERK 07/15/2022 03:18 PM INDEX NO. 157001/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/15/2022 shows Plaintiff, his truck and the loading dock, and captures Plaintiff’s fall, in addition to the minutes immediately prior to, and up to several seconds after. 77. The video footage, entirely fails to evidence any liquid, oil or other substance which caused Plaintiff’s slip and fall, nor does it depict Plaintiff slipping on any “dark stain.” Instead, it appears to depict the wheel of Plaintiff’s pallet jack become lodged between the back of