Motion-Secondary: Anne Furuya v. Amc Entertainment Inc. d/b/a AMC Loews Lincoln Square 13

On January 19, 2017 a Motion-Secondary was filed involving a dispute between Anne Furuya, and Amc Entertainment Inc. D B A Amc Loews Lincoln Square 13, for Torts - Other Negligence (Premises Liability) in the District Court of New York County.

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STATE OF NEW YORK
SUPREME COURT : COUNTY OF NEW YORK

ANNE FURUYA, AFFIRMATION IN SUPPORT
OF MOTION FOR SUMMARY
Plaintiff, JUDGMENT

Index No. 150632/2017
-against-

AMC ENTERTAINMENT, INC. D/B/A AMC Lowes
Lincoln Square 13.

Defendant(s).

MATTHEW G. MILLER an attorney duly admitted to practice law in the Courts of the

State of New York, hereby affirms the following to be true under penalty of perjury pursuant to

CPLR § 2106:

1. I am a Partner with the law firm GOLDBERG SEGALLA LLP, attorneys for Defendant

AMC ENTERTAINMENT, INC., i/s/h/a AMC Lowes Lincoln Square 13. ("Defendant").

As such, I am fully familiar with the facts and circumstances surrounding this action based upon

a review of the file maintained by this office.

2. I submit this affirmation in support of the Defendant's motion, pursuant to C.P.L.R. §

3212, seeking summary judgment dismissing plaintiff's complaint.

PRELIMINARY STATEMENT

3. This is an action for personal injuries allegedly sustained by the plaintiff, ANNE

FURUYA ("Plaintiff"), as a result of an alleged trip and fall accident which occurred on January

7, 2017, while at the AMC Movie Theater Located at 1998 Broadway, New York, New York.

4. Based upon certified weather reports and as according to the plaintiff's own testimony,

there was a snowstorm in progress at the time of the slip and fall, which occurred mere steps into

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the subject lobby. Therefore, Defendant AMC submits this motion pursuant to CPLR §§ 3211

(a) (7) and 3212 for Summary Judgment to dismiss Plaintiff's Complaint and all claims against it

on the grounds that there was an ongoing storm in progress at the time of the Plaintiff's slip and

fall incident, and, accordingly, Defendant cannot be held liable.

SCHEDULE OF EXHIBITS

Exhibit A Summons and Complaint

Exhibit B Verified Answer

Exhibit C
Plaintiff's Verified Bill of Particulars

Exhibit D
Preliminary Conference Order April 15, 2017

Exhibit E
Plaintiff's Deposition Transcript

Exhibit F
Exhibits from Plaintiff's Deposition

Exhibit G Transcript-
Defendant's Deposition AMC Manager Lea Toledo

Exhibit H Plaintiff's 3101(d) & Expert Report

2nd
Exhibit I Plaintiff's Supplemental verified Bill

Exhibit J Note of Issue and Certificate of Readiness for Trial

Exhibit K Defendant's 3101(d)

Exhibit L Affidavit of Expert Jeffrey Schawlje P.E.

Exhibit M Certified Weather Report

PROCEDURAL HISTORY

5. Plaintiff commenced the within action as a result of the alleged January 7, 2017 incident

by Filing of a Summons and Complaint upon the moving Defendant on or about January 19,

2017. S_ee, Exhibit "A".

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6. The issue was joined by the service of an Answer on March 2, 2017. Defendant also

served, together with the initial Answer, a Demand for a Bill of Particulars, Notice for Discovery

and Inspection, Demand for Expert Witness, Notice Re: Medicals, Demand for Collateral

Source, Demand for Proof of Filing and Index Number, Demand for Depositions, Demand for

"B."
Service via Facsimile and Demand for Insurance. lee, Exhibit

7. Plaintiff served a Verified Bill of Particulars in response to the Demand of the Defendant.

Therein, Plaintiff alleges that Defendant was negligent as a wet condition existed on the floor as

a result of moisture being brought into said lobby by individuals with snow/moisture on their

footwear as well from their coat, hats, outer garments and umbrellas. Plaintiff alleged that the

incident occurred at 7:15 P.M. on January 7, 2017. lee, Exhibit "C".

8. On April 15, 2017, a Preliminary Conference was held before the Honorable David B.

Cohen. h, Exhibit "D". The order outlined, among other items, an initial discovery schedule,

which noted that any dispositive motions are to be filed within the 120 days after the filing of the

Note of Issue.

9. Plaintiff was deposed on August 10, 2017. A copy of the transcript of the plaintiff's

deposition is annexed hereto. h, Exhibit "E". Exhibits from the deposition, which include

photographs of the area of the accident, were entered into the record at Plaintiff's deposition.

"F"
h, Exhibit

10. On November 20, 2017 the deposition of Defendant by AMC Manager, Lea

Toledo, was conducted. lee, Exhibit "G".

11. On January 8, 2018, plaintiff served an expert disclosure pursuant to CPLR

3101(d) of an Architect Elise Dann. Said disclosure also included a report dated January 2, 2018.

h, Exhibit "H".

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2nd
12. Plaintiff additionally served a Supplemental Verified Bill of Particulars

January 8, 2018, which incorporated the report of Architect Elise Dann. See, Exhibit "I".

13. On April 26, 2018, Plaintiff filed his Note of Issue and Certificate of Readiness

for Trial. See, Exhibit "J. Therefore, this motion is timely.

14. On August 23, 2018, defendant served an expert disclosure pursuant to CPLR

"K"
3101(d) of Expert Engineer Jeffrey Schwalje P.E. S_ee, Exhibit

15. No prior application for the relief sought herein has been made.

DEPOSITION TESTIMONY OF PLAINTIFF

16. Plaintiff, Anne Furuya, is currently a 63-year-old female who lives in New York,

New York. See, Exhibit "E", p. 8., In. 17-23. She resides on the Upper Westside of Manhattan

within 30 blocks of the subject theater. Exhibit "E", p. 9., In. 8-10.

One"
17. Plaintiff had intended to see "Star Wars Rogue that day, which started at

7:30 PM. Exhibit "E", p. 25-26., In. 11-5. This was a spontaneous decision and she intended to

see the movie alone. Exhibit "E", p. 26., In 24. Plaintiff purchased her ticket online, prior to

slushy."
getting to the location. Plaintiff described the weather conditions as "misty and Exhibit

"E", p. 26., In. 6-9.

86*
18. To go to the Theater, plaintiff left her apartment, walked to the Street subway

66* 66*
and took the No.1 train to the Street subway stop. She exited via Broadway and Street

and continued to walk to the theater. Exhibit "E", p. 30 In. 4-10 & In 13. Plaintiff was wearing,

like"
Khaki pants, a turtleneck shirt, a scarf, a hat, "down winter coat and a pair of boys UGG's

boots. Exhibit "E", p. 29 In. 30-10.

19. There was slushy snow on the ground. Plaintiff specifically observed slushy snow

on the curb near the AMC Theater. Exhibit "E", p. 36 In. 4-13. Plaintiff specifically stated

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curb."
"....it'shard to avoid stepping [on slushy snow] when you're walking on the street to the

Exhibit "E", p. 36 In. 18-19. Plaintiff did not clear her shoes of snow before her fall. Exhibit "E",

p. 37 In 16-21.

20. Before entering the Theater, plaintiff could observe at least 10 people standing

outside as well as 10 people inside in the lobby. Exhibit "E", p. 33 In. 5-10 & p. 34. In. 14-16.

Plaintiff then entered the theater via the southernmost revolving door at the Broadway Entrance.

Exhibit "E", p. 35 In. 6-20.

21. Plaintiff walked through the revolving doors and took two to three steps when the

accident occurred. Exhibit "E", p. 37 In. 6-8. Plaintiff alleged that her left foot slipped out from

underneath her and she fell backwards towards her left hand. Exhibit "E", p. 37-38 In.24-4.

22. Plaintiff indicated that the area was shiny and that her coat was wet. Exhibit "E",

p. 40 In. 19-22. Plaintiff stated that she touched the ground a few feet from the door and it

seemed like a film. Exhibit "E", p. 41 In.14-23. The shiny film was clear. Exhibit "E", p. 43 In.

17. Plaintiff noticed the floor was shiny when she had walked in, but didn't realize it was wet.

Exhibit "E", p. 62 In. 7-16. In plaintiff's deposition Exhibit K, plaintiff identified the point of her

accident. Exhibit "F". Plaintiff further circled the area of the fall and alleged wet area. Exhibit

"E", p. 59-60 In 9-11 & Exhibit "F".

DEPOSITION TESTIMONY OF LEA TOLEDO

23. Lea Toledo is currently a manager for AMC Theaters and was a manager at the

"G"
subject AMC location on the date of the incident. Exhibit p. 7 In. 20-23 & p.9 In. 14-20. She

"G"
has been employed by AMC for 10 years. Exhibit p.8 In. 10-12. The date of the subject

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"G"
accident was her last day at the subject theater. Exhibit p.9 In. 23-24. She was present on the

"G"
date of the accident as she had been working from 3 PM to 11PM. Exhibit p.35 In. 24. She

"G"
was a senior manager at the theater at the time of the accident. Exhibit p. 14 In.21-24. Her

"G"
role included overseeing alloperations. Exhibit p.14 In.24.

68*
24. The theater has entrances and exits on Broadway as well as Street. Exhibit

"G" 68*
p.21 In. 15. The theater has revolving doors on Broadway as well as street where there

"G"
are regular doors abutting the revolving doors. Exhibit p. 21-22 In. 22 -4.

"G"
25. During the daytime hours, the floors are cleaned by AMC ushers. Exhibit

p.25 In. 16-19. The ushers were assigned according to their respective work schedules and would

"G"
make rounds to observe the floor. Exhibit p.25-26 In. 24-2. The ushers would perform these

tasks based upon their own initiative as well as if a manager had asked them to do so. Exhibit

"G" "G"
p.26 In. 7-11. No records are kept if such a cleaning is needed. Exhibit p.26-27 In. 22-2.

Yellow wet floors signs are used for inclement weather days and were at the theater on the date

"G"
of accident. Exhibit p.30 In 4-10.

26. It was the AMC general policy and procedure to make sure that ushers are

"G"
mopping and have wet floor signs out. Exhibit p.43 In 7-11. The leadership team would

follow up to make sure that the floor has been mopped and there are wet floor signs around the

"G"
area. Exhibit p.43-44 In. 19-5.

Certified Weather Rep_ort

27. This Defendant has proffered and attached a certified weather report from the

United States Department of Commerce as Exhibit M1. The weather report contains accurate

This Certified Weather Report was copied in a bound format without breaking the seal.Counsel has retained the

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scientific data demonstrating that it was continuously snowing on the date and time of the

accident.

28. According to the certified weather, data from the National Oceanic &

Atmospheric Administration (NOAA) there was a storm in progress at the time of the plaintiff's

accident. According to the report, on January 7, 2017, readings from New York City Central

Park, NY, show that a snowstorm commenced around 8:51 AM and continued through 9:07 PM,

well after the plaintiff's accident, with measurable amounts of snowfall. Furthermore, the

temperature at the time of the subject accident was near 21 degrees Fahrenheit with sustained

winds of near 10 MPH and gusts of up to 20 MPH.

29. Additionally, plaintiff's own expert report contains a similar weather report

documenting a storm in progress. Specifically, plaintiff's expert prepared handwritten markings,

indicating that snowfall was occurring at the time of accident and even following such.

30. Therefore, it is undisputed that there was still a storm in progress at the time of

the plaintiff's accident as snowfall continued for a length of time after the plaintiff's accident.

Expert Opinion of Jeff Schwalje

31. Defendants have attached an affidavit of Expert Engineer Jeffrey Schwalje P.E. as

"L."
Exhibit Mr. Schwalje P.E. is an expert engineer with over thirty (30) years of experience in

"K."
this field.A more detailed description of Mr. Schwalje's background is provided in Exhibit

32. As fully discussed in his affidavit, Mr. Schwalje P.E. conducted an inspection on

the subject floor and surrounding areas on May 17, 2018. During said inspection, he conducted slip

resistance testing of the subject floor using a BOT 300E Tribometer in wet surface conditions. The

original version for inspectionupon request of theCourt. This matter isan E-File case and exhibits must be filed
accordingly.

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subject terrazzo floor tested in wet surface conditions was determined to be slip resistant with a

measured dynamic coefficient of friction of 0.58.

33. Mr. Schwalje P.E. additionally reviewed the report of Plaintiffs Expert, Elise

Dann, and observed her inspection on October 11, 2017 at the subject theater. The affidavit

confirms that Ms. Dann does not conclude that the subject floor is defective or in violation of any

codes, statutes, regulations, standards and guidelines in the condition to which itis constructed.

34. Mr. Schwalje P.E. opined that the subject lobby floor has a black terrazzo surface, a

stone material and is constructed and maintained in compliance with allcodes, statutes, regulations,

standards and guidelines. He concludes that the floor is slipresistant.

35. Therefore, it was his expert opinion and within a reasonable degree of engineering

certainty, the subject black terrazzo floor was and is compliant with all New York City and State

codes, statutes, regulations, standards and guidelines. Furthermore, Mr. Schwalje P.E. determined

the theater floor to be a slip resistant walking surface in compliance with industry standards,

including the American National Standards Institute.

AR_GUMEN_T

POINT I

THE DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT AS
A MATTER OF LAW

36. It iswell settled that summary judgment is warranted where, as here, there are no

triable issues of fact and the movant makes a prima facie showing of entitlement to judgment as

a matter of law. See Alvarez v. Prosoect Hosp., 68 N.Y.2d 320, 324 (1986). Issue finding, and

not issue determination, is the purpose of a summary judgment motion. S_ee Museums at Stony

Brook v. Vill. of Patchogue Fire Dep't, 146 A.D.2d 572, 573 (2d Dep't 1989). As such, summary

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judgment is properly granted when there are no genuine issues of fact to be resolved at trial.

Andre v. Pomerov. 35 N.Y.2d 361, 363 (1974).

37. "To obtain summary judgment it is necessary that the movant establish his cause

judgment'
of action or defense 'sufficiently to warrant the court as a matter of law in directing in

his favor (C.P.L.R. § 3212(b)), and he must do so by tender of evidentiary proof in admissible

form."
Zuckerman v. City of New York. 49 N.Y.2d 557, 562 (1988). Upon a movant's

demonstrating entitlement to summary judgment, the burden then shifts to the opposing party,

who in order to defeat the motion for summary judgment, must proffer evidence in admissible

fact."
form . .. and must show facts sufficient to require trial of any issue of C.P.L.R. § 3212(b);

Zuckerman, 49 N.Y.2d at 562 (1988).

38. The opposing party must present facts sufficient to require trial of any material

issue of fact by producing evidentiary proof in admissible form. See Joseph P. Day Realty Corp.

v. Aeroxon Prods., 538 N.Y.S.2d 834 (2d Dep't 1998). Additionally, the opposing party must

assemble, lay bare and reveal his proof in order to establish that the matter set forth in his

pleadings are real and capable of being established. Castro v. Liberty Bus Co., 435 N.Y.S.2d 340

(2d Dep't 1981). Significantly, "mere conclusions, expressions of hope or unsubstantiated

insufficient."
allegations or assertions are Zuckerman, 49 N.Y.2d at 562.

39. The mere happening of an accident does not automatically create a

presumption of liability. Liability attaches only if the defendant breaches a legal duty to the

plaintiff which breach is a substantial cause of the events that produced the injury. Perez v. New

(1st
York Tel., Co., 161 A.D.2d 191 Dep't. 1990). It iswell-established that a property owner is

charged with the duty to maintain the premises in a reasonably safe condition. Katz v.

Westchester County Healthcare Corp., 82 A.D.3d 712, 713 (2d Dep't. 2011).

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40. Based on foregoing, Defendant has clearly set forth a prima facie showing of

entitlement to judgment as a matter of law by tendering the following sufficient evidence that

eliminates any material issues of fact: pleadings, certified weather report, expert affidavit, sworn

testimony, photographs, analysis, and legal support. The facts are undisputed. Here, the

defendant has put forth prima facie evidence of a storm in progress and are therefore entitled to

the Storm in Progress Defense.

POINT II

DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT BECAUSE THERE WAS
PROGRESS"
AN ONGOING "STORM IN AT THE TIME OF THE INCIDENT

41. It iswell-settled law that in order for the plaintiff to establish a prima facie case of

negligence, there must be a breach of a duty owed to plaintiff. However, it has also been long

established that a defendant has no duty to remove snow and ice during a storm that is in

progress. A property owner will not be held liable in negligence for a plaintiff's injuries

sustained as a result of a snowy or icy condition occurring during an ongoing storm or for a

reasonable time thereafter. Solazzo v. N.Y. City Transit Auth. 6 NY3d 734 (2005).

42. Courts have held that liability may not be predicated on a landowner's failure to

act to remedy a dangerous condition prior to the end of a storm. (Croff v. Grand Union, 205

AD2d 856, 613 NYS2d 448 [3d Dept., 1994]), Clement v. New York City Transit Authority 122

A.D.3d 448 (1st Dept., 1998). Moreover, Courts apply that principle to immediate entryways

and lobbies. Zonitch v Plaza at Latham 255 A.D.2d 808 (3d Dep't., 1998 see also v
Kovelsky

City Univ. of N.Y., 221 A.D.2d 234 08 (1st Dep't., 1998 ).

43. The defendant, AMC, therefore has no liability relating to any alleged dangerous

condition that may have arisen during the storm, or prior to the end of a storm. Snow, from the

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ongoing storm, was tracked in the lobby, as there was specific testimony from plaintiff that she

observed 10 others in the lobby, as well as others outside of the entrance. Coupled with

plaintiff's own testimony that she did not even clear her shoes, gives rise that the subject snow

and water was tracked in by said plaintiff herself or others moments before.

44. In a nearly identical matter, the Court in Assaf v City of New York, 2010 NY

Slip Op 51581(U) (NY Supp Ct. 2010), granted Summary Judgment to defendant tenants where

plaintiff tripped and fell after slipping in a lobby due to accumulation of water and melted snow

on the entryway floor. In that matter, as here, it isundisputed that there was a storm in progress

at the time of accident. Most notably, Summary Judgment was granted even though the

defendants failed to place mats in the lobby, in violation of their policy.

45. The Assaf Court reasoned that the duty "to take reasonable measures to remedy a

dangerous condition caused by a storm is suspeñded while the storm is in progress, and does not

ended."
commence until a reasonable time after the storm has citine Pippo v City of New York,

43 AD3d 303 (1st Dep't 2007).

46. Evidence of a storm in progress constitutes prima facie evidence of the absence of

a duty. Powell v MLG Hillside Assocs., L.P., 290 AD2d 345 (1st Dep't 2002. An owner or

tenant is therefore not held in liability caused by accumulated snow until "the storm has passed

and precipitation has tailed off to such an extent that there is no longer any appreciable

accumulation,"
M.

47. This timing was further elaborated in Sherman v. New York State Thruway

Authority, where the Court of Appeals held that the defendant was entitled to summary

judgment, as there was uncontroverted evidence that a storm was ongoing at the time of the

plaintiff's fall; there was precipitation falling at the time of the accident and there had been

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precipitation for a substantial time before the accident establishing the storm was stillin progress

and therefore, the defendant's was not negligent. Sherman v. New York State Thruway

Authority, 27 N.Y.3d 1019 (2016). This included a snowstorm that shifted into rain. We have

both here, as the Certified Weather Report and plaintiff denote the snowstorm. Therefore, the

Storm in Progress Doctrine applies.

48. "Moreover, a slip and fallon a wet floor on a rainy or snow day does not warrant

recovery solely on the ground that the floor was wet, nor may negligence be based solely on a

day."
failure to place mats on a floor on a rainy or snowy Assaf v City of New York, 2010 NY

Slip Op 51581(U) (NY Supp Ct. 2010) citing, (86 NY Jur 2d, Premises Liability §§ 434, 436

[2010]; see Kovelsky v City Univ. of New York, 221 AD2d 234 [1st Dep't 1995] [defendant

"not required to cover all of its floors with mats, nor to continuously mop up all moisture

resulting from tracked-in, melting snow"]).

49. Furthermore, in Solazzo, the plaintiff slipped and fell on covered subway stairs,

which had been exposed to weather conditions consisting of snow, sleet, and rain that were

continuing on and off all day. The Court found that the defendant was entitled to summary

judgment in light of the ongoing storm and the exposure of the steps to the storm's elements

under the Storm in Progress Doctrine. (Id.).

50. In Dowden v. Lone Island Rail Road, the court found that the defendant made a

prima facie showing of entitlement to judgment as a matter of law by submitting, inter alia,

meteorological records indicating that light snow fell in the area on the date of the accident.

(Dowden v. Long Island Rail Road, 305 AD2d 631, 759 NYS2d 544 [2d Dep't., 2003]).

51. Lastly, it is not the burden of this Defendant to put forth evidence of a last

inspection of the subject area to avail itself of a Storm in Progress defense. See, Sow v. Fedcan

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Rehabilitative Services, Inc., 160 A.D. 3d 604 (1st Dep't 2018). Such evidence is only a

requirement needed for a defendant who is attempting to refute constructive notice, not one

asserting a Storm in Progress defense. I_d.

52. Here, we have an ongoing storm in progress with strong winds that had been

occurring throughout the day and continuing after the plaintiff's subject accident. The defendant

has submitted prima facie proof that a Storm in Progress was occurring thereby relieving them of

liability. Testimony demonstrated that AMC would regularly inspect and clean the areas, and

plaintiff did not provide any evidence of specific notice of this condition, other than that it was

snowing.

53. Indeed, from the evidence submitted herein, there was snow falling at the time of

the accident and there had been snow falling for a substantial time before the accident. Thus, the

storm was still in progress, and therefore, the defendant's duty to permanently abate the wet

condition caused by those tracking in snow had not yet arisen.

POINT II

PLAINTIFF'S EXPERT'S THEORY DOES NOT OVER COME THE STORM IN
PROGRESS DEFENSE

54. Plaintiff's expert report does not overcome the Storm in Progress Doctrine. All

claims made by plaintiff's expert relate to a wet floor caused by the storm. Any moisture on the

floor is attributable to the Storm in Progress. At no point does plaintiff's expert state or claim

that the Terrazzo floor is inherently dangerous. In fact, Ms. Dann notes that the floor is

"H"
adequately slip resistant when dry. Exhibit at pg 8. Counsel is clearly attempting to make an

end run around the Storm in Progress Doctrine by arguing that the floor is improperly slip

resistant when wet. This is irrelevant because any wetness is covered by to the Storm in Progress

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Doctrine and therefore liability is not attributable to this accident.

55. Moreover, the First Department has specifically rejected these types of expert

affidavits in Storm in Progress cases. Hussein v. New York City Transit Authority, 266 A.D.2d

146, (1st Dep't 1999). The Court has consistently held that absent proof of the reason for

slippery"
plaintiffs fall other than the "inherently condition of the floor, no cause of action for

Case Info

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David B Cohen Track Judge’s New Case

Case No.

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Document Filed Date

August 23, 2018

Case Filing Date

January 19, 2017

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