Preview
FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------X
RISA MORLEY, Individually and as parent Index No.: 150239/2017
and natural guardian of JM, an infant
under the age of fourteen years old,
Plaintiffs,
-against-
BPP ST OWNER, LLC, STUYVESANT
TOWN-PETER COOPER VILLAGE, IRE CROWNRINKS, LLC
and THE ICE AT STUYTOWN,
Defendants.
-----------------------------------------X
MEMORANDUM OF LAW IN SUPPORT
OF OPPOSITION TO SUMMARY JUDGM__ENT MOTION
SUMMARY JUDGMENT STAND____ARD
1. To grant summary judgment it must clearly appear that no material
and triable issue of fact is presented. Di Menna & Sons v. City of New
York, 301 NY. 118 (1950). Summary judgment is a drastic remedy which must
be denied if any issues of facts exist. Andre v. Pomeroy, 35 NY2d 361
20"'
(1974), Sillman v. Century Fox, 3 NY2d 395 (1957). New York Courts
are reluctant to summarily dispose of negligence cases in all but the
(3rd
most egregious of circumstances. Gabrielle v. Craft, 75 A.D. 2d 939
Dept. 1980). Further, summary judgment should not be granted where there
is any doubt as to the existence of a material issue of fact (see
Zuckerman v. City of New York, 49 N.Y.2d 557, [1980]).
1 of 12
FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020
2. "To be entitled to judgment as a matter of law Defendant has the
burden of demonstrating that the Plaintiff's case was deficient as a
matter of law, i.e., that there is no rational process by which the jury
could find for the Plaintiff against the movant. In evaluating such a
motion, the Court must accept that Plaintiff's evidence as true and grant
the Plaintiff the benefit of every favorable inference which may be drawn
evidence."
from the Hughes v. New York Hospital/Cornell Medical Center,
195 A.D.2d 442 (2d Dept. 1993), citing Sachs v. Nassau County, 151 A.D.2d
73rd
588 (2d Dept. 1989), Mertsaris v. Corp., 105 A.D.2d 67.
POINT I
THE BOARDS AND CAPRAILS WERE DEFECTIVELY CONSTRiJCTED AND MAINTAINED
A. DEFECTIVE CONSTRUCTION
3. A defendant is liable if it caused or created a defective or
unsafe condition. In order for a landowner to be liable in tort to a
Plaintiff who is injured as a result of an allegedly defective condition
upon property, it must be established that a defective condition existed
and that the landowner affirmatively created the condition or had actual
or constructive notice of its existence. Redyman v. Paradise II Resorts,
Inc., 123 A.D.3d 789 (2d Dep't 2014). In premises liability actions,
alleging an injury caused by a defective condition, the Plaintiff must
show the landowner either created the defective condition, or had actual
or constructive notice thereof for such a period of time that, in the
exercise of reasonable care, it should have corrected it. Baez v. Jovin
2
2 of 12
FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020
III, LLC, et al., 41 A.D.3d 751 (2d Dep't 2007). Here Plaintiff's expert
opines that the caprail on top of the board is required to be radiused
to have a smooth, rounded edge flush with the dasher facing to comply
with generally accepted industry standards. (ANSI Standards F1703-13,
5.2.2, Standard Guide for Skating and Ice Hockey Playing Facilities.)
(O'Rourke Aff par. 4) The caprail was not radiused and did not have a
smooth rounded edge. Instead it was straight edged, cracked with an
uneven gap. (Exhibit "C").
4. According to Plaintiff's expert engineer, the boards and
caprails were not properly fastened and secured causing a hazardous and
dangerous condition. The dangerous and defective condition caused the
accident. (O'Rourke Aff par. 4f). They were not properly fastened,
secured and were not flush. There was a significant uneven gap. (O'Rourke
Aff par. 4e). In addition, an observation of the video depicts vibration
from skaters causing the dashboard to separate which created a hazardous
and dangerous condition. (O'Rourke Aff par. 4e). The boards's separation
can cause a skater's hand when on the caprail to become captured in the
gap created. (O'Rourke Aff par. 4e).
5. In Welo v. Union News Co., a skater was injured when she
attempted to reach a handrail erected alongside the rink for support, but
one of her skates struck a wooden ledge, causing her to fall and break
(18t
her leg. Welo v. Union News Co., 263 A.D. 328 Dep't 1942). The
Defendant conceded that one of the purposes of the handrail was to give
support to skaters when the occasion required it. The First Department
held that while Plaintiff would possibly have assumed the risk of injury
from falling on minor imperfections in the ice, particularly when they
3
3 of 12
FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020
are known to her, she did not assume the risk incidental to a dangerous
structural condition. Id. see, Renegar v. Barry, 279 N. Y. 605.
6. In Welo, like here, the Plaintiff was injured by something not
associated with falling while skating. Most skaters assume the risk of
being hurt while skating, but as the Court held in Welo, a skater does
not assume the risk incidental to a dangerous structural condition. In
the case at hand, the Plaintiff was skating to the boards to regain her
balance, when she placed her hand in a crack in the boards. The Plaintiff
could reasonably assume that the boards would be kept in a safe
condition.
B. NEGLIGENT MAINTENANCE
7. Mr. Frey testified that skaters use the boards for assistance to
maintain their (Defendants'
balance and stay upright while skating.
"E"
Exhibit pg. 24) . This is exactly what JM was doing holding onto the
top of the board to maintain her balance when her thumb was caught in the
uneven gap on the caprail. As the top of the board is used as a handrail
and guard, it falls under the New York Property Maintenance and Building
Code. (Affidavit O'Rourke par 6 & 7) New York Property Maintenance and
Building Code 304.12, states that every handrail and guard shall be
firmly fastened and capable of supporting normally imposed loads and
shall be maintained in good condition. Permitting the caprail to be
maintained with an uneven and hazardous gap was a violation of Section
304.2 of the Property Maintenance and Bulding Code. (Affidavit O'Rourke
par. 7).
4 of 12
FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020
8. A Defendant has a duty to maintain their premises in a reasonably
safe condition. Sweeney v. Riverbay Corp., 76A.D.3d 847 (1st Dep't 2010).
In Sweeney, a Plaintiff sought damages for injuries she sustained after
tripping and falling over a garden hose that had been placed across the
sidewalk in front of a building managed by Defendant. The Court reasoned
that even assuming that the deposition testimony and photographs
suggesting the hose was clearly visible from all directions compels the
conclusion as a matter of law that the hazard was open and obvious.
Further, the Court found that there was evidence in the form of a witness
that the hose was stretched across the sidewalk at 8:30 a.m.. Id. The
Plaintiff's Bill of Particulars and Defendant's complaint report fix the
time of the accident around 9:10 a.m. Id. The Court held that there is
a triable of on the witness'
issue fact based testimony that the hose had
been on the sidewalk for a sufficient length of time prior to the
accident so as to permit its discovery and removal by Defendant. Id. see
Gordon v. American Museum of Natural History.
9. Similar to the facts in Sweeney, the case at hand involves a
defect that existed for a sufficient length of time prior to the accident
so as to permit its discovery by Defendants. The manager, Mr. Frey
testified that he would perform an inspection of boards prior to the
of each shift. (Defendants' "E" In
beginning Exhibit pg. 23). addition,
both Mr. Frey and the ice monitors testified that one of the
responsibilities of the ice monitors was to visually check the boards
ice. (Defendants' "E" 23).
while they were on the Exhibit pg.
10. Specifically, there was testimony that the ice rink opened at
"E" pgs. 34-
noon on the afternoon of the accident. (Defendant's Exhibit
5
5 of 12
FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020
35) . The incident report lists the time of accident at or around 1:40
(Defendants' "B"
p.m. . Exhibit pgs. 14-15) . Further, when compared to the
holding in Sweeney, where the Court held that the issue of the hose on
the sidewalk for approximately thirty (30) minutes was sufficient to
raise a triable issue of fact, the matter of over ninety (90) minutes in
this an of fact. Plaintiffs' Expert
case should similarly raise issue
Witness, Engineer, Brian O'Rourke opines in his Affidavit that the
caprail was due to negligent construction. It likely existed for weeks
or months before the accident.
11. As a result, a question of fact exists as to whether Defendants
had constructive notice and whether they maintained the caprails and
boards in a reasonably safe condition.
POINT II.
DEFENDANTS' ARE LIABLE
UNDER THE THEORY OF NEÇLIGENT SUPERVISION
12. As the owner of an ice skating rink, Defendants had a duty to
exercise care to make the rink as safe as it appeared to its patrons.
(18'
Nunez v. Recreation Rooms and Settlement, Inc. , 229 A.D.2d 359 Dep't
1996) ; See Turcotte v. Fell, 68 N.Y.2d 432; Cardoza v. Village of
Freeport, 205 A.D.2d 571. Though not liable for hazards which are
foreseeable consequences of participation in the sport. Defendants have
a duty to mitigate or prevent through adequate supervision. Nunez v.
Recreation Rooms and Settlement, Inc.; see, Benitez v. New York City Bd.
of Educ., 73 N.Y.2d 650; Trainor v. Oasis Roller World, 168 A.D. 2d 235;
cf., Eua v. South Shore Skating, 193 A.D.2d. 774.
6
6 of 12
FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020
Defendants'
13. failed to adequately supervise the ice rink at the
time of the accident. There was only one ice monitor on the ice at the
time of the accident. Ms. Bickley testified that it became more crowded
over the course of her time on the ice. Ms. Bickley testified that there
would usually be two ice monitors on the ice in similar situations with
Defendants'
the number of skaters that there were on November 8, 2016.
employees testified that it is common for skaters to lean against the
boards, and that the boards were able to support the weight of adults.
14. Ms. Bickley further testified that she was in training during
her first week at the ice rink. She had never previously received
training in ice monitoring. She would always be accompanied with an
experienced monitor during her first two weeks of employment.
15. The ice monitor on duty at the time of the accident testified
that the policy of the ice rink was that if an employee saw a separation
of the boards, someone would either put tape on the crack or put a screw
(Defendants' "I"
in to make sure there was not a separation. Exhibit pg.
50). Specifically, Ms. Bickley testified that after the accident, she and
her co-worker saw that there was an indentation in the board.
(Defendants' Exhibit "G"
pg. 47). Further, Ms. Bickley testified that
they check the boards throughout the day, so any time that they see there
are stick tape over (Defendants' "I"
indentations, they it. Exhibit pgs.
47-48). In this case, Ms. Bickley testified that after the accident, they
did not use tape because the crack was big enough where tape would not
have done much so they had to reinforce the boards with a screw.
(Defendants' "I"
Exhibit pg. 48). Ms. Bickley informed her manager, Mr.
him to defect. (Defendants'
Frey about the crack and asked remedy the
Exhibit "I" pg. 48).
7
7 of 12
FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020
16. JM testified she was holding onto the boards and caprail under
her "B" "C" depict
thumb was caught in a crack. Exhibits "A", and the
"D" is video the accident
accident location. Exhibit a depicting
location. The boards have an uneven gap on the caprail. JM testified her
thumb was caught on the top of the board in the crack. Ms. Bickley
testified that the crack was large enough for someone's thumb to get
caught and in her opinion, JM's thumb hit the separation and got caught.
She told Mr. Frey about the separation and crack and asked him to correct
it, so no one else would get hurt. The crack could not be fixed with
tape, and screws were used.
17. The child suffered a partial tip amputation and loss of her
thumbnail. She underwent plastic surgery repair. She is left with a
deformity. (Attached "E"
cosmetic as Plaintiff's Exhibit are photographs
and medical reports of JM's injuries to her thumb). She has been treating
with a licensed social worker who diagnosed JM with Post-
certified,
Traumatic Stress Disorder ("PTSD"). A copy of the report is annexed as
Exhibit "F").
18. The uneven gap in the caprail and boards is not a risk assumed
by skaters. Skaters expect the conditions of the ice rink to be safe.
Both the manager and ice monitors failed to recognize the danger of the
gap that existed on the top of the boards.
8
8 of 12
FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020
POINT III
CONFLICTING _TESTIMONY RAISES
AN___ISSUE OF FACT
19. There was conflicting testimony regarding the number of ice
monitors that should have been on the ice at the time of the accident.
Ms. Bickley testified that she was the only ice monitor at the time of
the accident. She testified that there were around 25-30 skaters on the
of accident. (Defendants' Exhibit "I" pg. 22). Ms.
ice at the time the
Bickley testified that with that size, there would normally be two (2)
(Defendants' "I" Defendants'
ice monitors on the ice. Exhibit pg. 22).
cite the testimony of Mr. Frey, who testified that the industry standard
(Defendants' Exhibit "E" pg. 38). Mr.
is one (1) monitor per 200 skaters.
Frey's assertion regarding the industry standard is unsupported by any
documented industry standard. Further, Ms. Bickley testified that there
should have been two (2) ice monitors on ice at the time of the accident.
20. There is conflicting testimony between Ms. Bickley and Mr. Frey
regarding the defect in the boards . Ms . Bickley te stified that when she
checked the boards after the accident, there was an one inch separation
Defendants' "I"
of boards at the location of the accident. Exhibit pg.
36). Further, she testified that the separation was big enough for
someone's thumb to get caught . The testimony of Ms. Bickley raises an
issue of fact when compared to the testimony of Mr. Frey cited by
Defendants. Mr. Frey testified that he also inspected the boards after
separation in boards. Defendants'
the accident, but did not see any the
"E"
Exhibit pg . 5 4 ). However, Ms. Bickley testified the separation in the
boards was serious enough that a screw had to be used to fix the
separation.
9
9 of 12
FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020
21. A jury could reasonably infer that had two (2) ice monitors been
present inspecting the boards, they would likely have discovered the
defect in one (1) hour and forty (40) minutes of skating. Since they only
had one (1) untrained ice monitor the defendants are liable for negligent
supervision and monitoring.
POINT IV
PLAINTIFF'S CLAIM OF PTSD
SHOULD NOT BE DISMISSED
22. Under Education Law 7701(2), an Licensed Clinical Social Worker
(LCSW) can diagnose "mental, emotional, behavioral, addictive and
disabilities"
developmental disorders and and can administer and
interpret tests of psychological functioning, create assessment-based
treatment plans and provide short-term and long-term psychotherapy and
psychotherapeutic treatment. The Court in Vergine v. Phillips held that
these are functions comparable to those of a psychologist. Vergine v.
Phillips, 167 A.D.3d 1319 (3d Dep't 2018). Further, the Court opined that
for licensing purposes, an LCSW must have at least three years full-time
supervised postgraduate clinical social work experience in diagnosis,
psychotherapy and assessment-based treatment plans, or its part-time
equivalent, obtained over a continuous period not to exceed six years,
under the supervision of a psychiatrist, a licensed psychologist, or an
LCSW in a facility setting. Id. The Court held that given the
similarities, an LCSW is competent to render an opinion as to whether a
person has PTSD for purposes of establishing a serious injury. Id.
10
10 of 12
FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020
23 . The Plaintiff in Vergine was diagnosed with PTSD by a LCSW. The
LCSW provided psychotherapy treatment to the Plaintiff for over a year.
Id. The LCSW averred that she personally witnessed physical anxiety
exhibited by the Plaintiff. Id. Further, the LCSW stated that the
Plaintiff was both significantly limited in her ability to drive and also
distressed as a passenger, conditions that impacted her independence and
imposed a significant limitation of psychological function. Id. The Court
held that this submission presents an issue of fact as to whether the
Plaintiff sustained causally-related PTSD. Id.
24. In the case at hand, Plaintiff JM was diagnosed with PTSD by a
Ms. Roma Timmerman. Ms. Timmerman stated in her report that re-
LCSW,
experiencing the accident causes JM increased arousal, meaning her system
is on activation mode at times more frequent than normal. (Exhibit "F") .
JM treated with Ms. Timmerman after the accident, when she diagnosed her
with PTSD. Further, Ms. Timmerman also opined that "JM has reported
feeling self-conscious of her thumb, and had to halt some social
activities like gymnastics due to her thumb and sleep-overs due to her
symptoms of "F"
bed-wetting. (Exhibit ) . The halting of social activities
due to her physical anxiety is similar to the conditions the Plaintiff
experienced in Vergine. In that case, the Plaintiff was distressed to be
a passenger in a vehicle after the subject accident. Here, JM has felt
self-conscious of her thumb and has even had to halt some social
activities due to her thumb. As such, there is a clear issue of fact and
Plaintiff's claim of PTSD should not be dismissed.
11
11 of 12
FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020
CONCLUSION
25. Summary judgment is not appropriate when there are triable
issues of fact for a jury to decide. It is well settled that in order to
grant summary judgment, it must clearly appear that no material issue of
fact has been Salino (2nd
presented. v. IPT Trucking, Inc., 203 A.D.2d 352
Dept. 1994). Since summary judgment is the procedural equivalent of a
trial, any doubt as to the existence of a triable issue, or where the
material issue of fact is "arguable", requires denial of summary
judgment. Id. Accordingly, the instant case demonstrates issues of fact
that require defendants'
jury determination. The motion for summary
judgment, therefore should be denied.
Dated: White Plains, NY
January 7, 2020
Bai an McMillan,-LLP
By:
Whn J. Üai)1y, Esq.
Attorneyg'for Plaintif f s
244 / Westchester Avenue
Suite 410
White Plains, NY 10604
(914) 684-9100
12
12 of 12
Preview
FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------X RISA MORLEY, Individually and as parent Index No.: 150239/2017 and natural guardian of JM, an infant under the age of fourteen years old, Plaintiffs, -against- BPP ST OWNER, LLC, STUYVESANT TOWN-PETER COOPER VILLAGE, IRE CROWNRINKS, LLC and THE ICE AT STUYTOWN, Defendants. -----------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF OPPOSITION TO SUMMARY JUDGM__ENT MOTION SUMMARY JUDGMENT STAND____ARD 1. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented. Di Menna & Sons v. City of New York, 301 NY. 118 (1950). Summary judgment is a drastic remedy which must be denied if any issues of facts exist. Andre v. Pomeroy, 35 NY2d 361 20"' (1974), Sillman v. Century Fox, 3 NY2d 395 (1957). New York Courts are reluctant to summarily dispose of negligence cases in all but the (3rd most egregious of circumstances. Gabrielle v. Craft, 75 A.D. 2d 939 Dept. 1980). Further, summary judgment should not be granted where there is any doubt as to the existence of a material issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, [1980]). 1 of 12 FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020 2. "To be entitled to judgment as a matter of law Defendant has the burden of demonstrating that the Plaintiff's case was deficient as a matter of law, i.e., that there is no rational process by which the jury could find for the Plaintiff against the movant. In evaluating such a motion, the Court must accept that Plaintiff's evidence as true and grant the Plaintiff the benefit of every favorable inference which may be drawn evidence." from the Hughes v. New York Hospital/Cornell Medical Center, 195 A.D.2d 442 (2d Dept. 1993), citing Sachs v. Nassau County, 151 A.D.2d 73rd 588 (2d Dept. 1989), Mertsaris v. Corp., 105 A.D.2d 67. POINT I THE BOARDS AND CAPRAILS WERE DEFECTIVELY CONSTRiJCTED AND MAINTAINED A. DEFECTIVE CONSTRUCTION 3. A defendant is liable if it caused or created a defective or unsafe condition. In order for a landowner to be liable in tort to a Plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence. Redyman v. Paradise II Resorts, Inc., 123 A.D.3d 789 (2d Dep't 2014). In premises liability actions, alleging an injury caused by a defective condition, the Plaintiff must show the landowner either created the defective condition, or had actual or constructive notice thereof for such a period of time that, in the exercise of reasonable care, it should have corrected it. Baez v. Jovin 2 2 of 12 FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020 III, LLC, et al., 41 A.D.3d 751 (2d Dep't 2007). Here Plaintiff's expert opines that the caprail on top of the board is required to be radiused to have a smooth, rounded edge flush with the dasher facing to comply with generally accepted industry standards. (ANSI Standards F1703-13, 5.2.2, Standard Guide for Skating and Ice Hockey Playing Facilities.) (O'Rourke Aff par. 4) The caprail was not radiused and did not have a smooth rounded edge. Instead it was straight edged, cracked with an uneven gap. (Exhibit "C"). 4. According to Plaintiff's expert engineer, the boards and caprails were not properly fastened and secured causing a hazardous and dangerous condition. The dangerous and defective condition caused the accident. (O'Rourke Aff par. 4f). They were not properly fastened, secured and were not flush. There was a significant uneven gap. (O'Rourke Aff par. 4e). In addition, an observation of the video depicts vibration from skaters causing the dashboard to separate which created a hazardous and dangerous condition. (O'Rourke Aff par. 4e). The boards's separation can cause a skater's hand when on the caprail to become captured in the gap created. (O'Rourke Aff par. 4e). 5. In Welo v. Union News Co., a skater was injured when she attempted to reach a handrail erected alongside the rink for support, but one of her skates struck a wooden ledge, causing her to fall and break (18t her leg. Welo v. Union News Co., 263 A.D. 328 Dep't 1942). The Defendant conceded that one of the purposes of the handrail was to give support to skaters when the occasion required it. The First Department held that while Plaintiff would possibly have assumed the risk of injury from falling on minor imperfections in the ice, particularly when they 3 3 of 12 FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020 are known to her, she did not assume the risk incidental to a dangerous structural condition. Id. see, Renegar v. Barry, 279 N. Y. 605. 6. In Welo, like here, the Plaintiff was injured by something not associated with falling while skating. Most skaters assume the risk of being hurt while skating, but as the Court held in Welo, a skater does not assume the risk incidental to a dangerous structural condition. In the case at hand, the Plaintiff was skating to the boards to regain her balance, when she placed her hand in a crack in the boards. The Plaintiff could reasonably assume that the boards would be kept in a safe condition. B. NEGLIGENT MAINTENANCE 7. Mr. Frey testified that skaters use the boards for assistance to maintain their (Defendants' balance and stay upright while skating. "E" Exhibit pg. 24) . This is exactly what JM was doing holding onto the top of the board to maintain her balance when her thumb was caught in the uneven gap on the caprail. As the top of the board is used as a handrail and guard, it falls under the New York Property Maintenance and Building Code. (Affidavit O'Rourke par 6 & 7) New York Property Maintenance and Building Code 304.12, states that every handrail and guard shall be firmly fastened and capable of supporting normally imposed loads and shall be maintained in good condition. Permitting the caprail to be maintained with an uneven and hazardous gap was a violation of Section 304.2 of the Property Maintenance and Bulding Code. (Affidavit O'Rourke par. 7). 4 of 12 FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020 8. A Defendant has a duty to maintain their premises in a reasonably safe condition. Sweeney v. Riverbay Corp., 76A.D.3d 847 (1st Dep't 2010). In Sweeney, a Plaintiff sought damages for injuries she sustained after tripping and falling over a garden hose that had been placed across the sidewalk in front of a building managed by Defendant. The Court reasoned that even assuming that the deposition testimony and photographs suggesting the hose was clearly visible from all directions compels the conclusion as a matter of law that the hazard was open and obvious. Further, the Court found that there was evidence in the form of a witness that the hose was stretched across the sidewalk at 8:30 a.m.. Id. The Plaintiff's Bill of Particulars and Defendant's complaint report fix the time of the accident around 9:10 a.m. Id. The Court held that there is a triable of on the witness' issue fact based testimony that the hose had been on the sidewalk for a sufficient length of time prior to the accident so as to permit its discovery and removal by Defendant. Id. see Gordon v. American Museum of Natural History. 9. Similar to the facts in Sweeney, the case at hand involves a defect that existed for a sufficient length of time prior to the accident so as to permit its discovery by Defendants. The manager, Mr. Frey testified that he would perform an inspection of boards prior to the of each shift. (Defendants' "E" In beginning Exhibit pg. 23). addition, both Mr. Frey and the ice monitors testified that one of the responsibilities of the ice monitors was to visually check the boards ice. (Defendants' "E" 23). while they were on the Exhibit pg. 10. Specifically, there was testimony that the ice rink opened at "E" pgs. 34- noon on the afternoon of the accident. (Defendant's Exhibit 5 5 of 12 FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020 35) . The incident report lists the time of accident at or around 1:40 (Defendants' "B" p.m. . Exhibit pgs. 14-15) . Further, when compared to the holding in Sweeney, where the Court held that the issue of the hose on the sidewalk for approximately thirty (30) minutes was sufficient to raise a triable issue of fact, the matter of over ninety (90) minutes in this an of fact. Plaintiffs' Expert case should similarly raise issue Witness, Engineer, Brian O'Rourke opines in his Affidavit that the caprail was due to negligent construction. It likely existed for weeks or months before the accident. 11. As a result, a question of fact exists as to whether Defendants had constructive notice and whether they maintained the caprails and boards in a reasonably safe condition. POINT II. DEFENDANTS' ARE LIABLE UNDER THE THEORY OF NEÇLIGENT SUPERVISION 12. As the owner of an ice skating rink, Defendants had a duty to exercise care to make the rink as safe as it appeared to its patrons. (18' Nunez v. Recreation Rooms and Settlement, Inc. , 229 A.D.2d 359 Dep't 1996) ; See Turcotte v. Fell, 68 N.Y.2d 432; Cardoza v. Village of Freeport, 205 A.D.2d 571. Though not liable for hazards which are foreseeable consequences of participation in the sport. Defendants have a duty to mitigate or prevent through adequate supervision. Nunez v. Recreation Rooms and Settlement, Inc.; see, Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650; Trainor v. Oasis Roller World, 168 A.D. 2d 235; cf., Eua v. South Shore Skating, 193 A.D.2d. 774. 6 6 of 12 FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020 Defendants' 13. failed to adequately supervise the ice rink at the time of the accident. There was only one ice monitor on the ice at the time of the accident. Ms. Bickley testified that it became more crowded over the course of her time on the ice. Ms. Bickley testified that there would usually be two ice monitors on the ice in similar situations with Defendants' the number of skaters that there were on November 8, 2016. employees testified that it is common for skaters to lean against the boards, and that the boards were able to support the weight of adults. 14. Ms. Bickley further testified that she was in training during her first week at the ice rink. She had never previously received training in ice monitoring. She would always be accompanied with an experienced monitor during her first two weeks of employment. 15. The ice monitor on duty at the time of the accident testified that the policy of the ice rink was that if an employee saw a separation of the boards, someone would either put tape on the crack or put a screw (Defendants' "I" in to make sure there was not a separation. Exhibit pg. 50). Specifically, Ms. Bickley testified that after the accident, she and her co-worker saw that there was an indentation in the board. (Defendants' Exhibit "G" pg. 47). Further, Ms. Bickley testified that they check the boards throughout the day, so any time that they see there are stick tape over (Defendants' "I" indentations, they it. Exhibit pgs. 47-48). In this case, Ms. Bickley testified that after the accident, they did not use tape because the crack was big enough where tape would not have done much so they had to reinforce the boards with a screw. (Defendants' "I" Exhibit pg. 48). Ms. Bickley informed her manager, Mr. him to defect. (Defendants' Frey about the crack and asked remedy the Exhibit "I" pg. 48). 7 7 of 12 FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020 16. JM testified she was holding onto the boards and caprail under her "B" "C" depict thumb was caught in a crack. Exhibits "A", and the "D" is video the accident accident location. Exhibit a depicting location. The boards have an uneven gap on the caprail. JM testified her thumb was caught on the top of the board in the crack. Ms. Bickley testified that the crack was large enough for someone's thumb to get caught and in her opinion, JM's thumb hit the separation and got caught. She told Mr. Frey about the separation and crack and asked him to correct it, so no one else would get hurt. The crack could not be fixed with tape, and screws were used. 17. The child suffered a partial tip amputation and loss of her thumbnail. She underwent plastic surgery repair. She is left with a deformity. (Attached "E" cosmetic as Plaintiff's Exhibit are photographs and medical reports of JM's injuries to her thumb). She has been treating with a licensed social worker who diagnosed JM with Post- certified, Traumatic Stress Disorder ("PTSD"). A copy of the report is annexed as Exhibit "F"). 18. The uneven gap in the caprail and boards is not a risk assumed by skaters. Skaters expect the conditions of the ice rink to be safe. Both the manager and ice monitors failed to recognize the danger of the gap that existed on the top of the boards. 8 8 of 12 FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020 POINT III CONFLICTING _TESTIMONY RAISES AN___ISSUE OF FACT 19. There was conflicting testimony regarding the number of ice monitors that should have been on the ice at the time of the accident. Ms. Bickley testified that she was the only ice monitor at the time of the accident. She testified that there were around 25-30 skaters on the of accident. (Defendants' Exhibit "I" pg. 22). Ms. ice at the time the Bickley testified that with that size, there would normally be two (2) (Defendants' "I" Defendants' ice monitors on the ice. Exhibit pg. 22). cite the testimony of Mr. Frey, who testified that the industry standard (Defendants' Exhibit "E" pg. 38). Mr. is one (1) monitor per 200 skaters. Frey's assertion regarding the industry standard is unsupported by any documented industry standard. Further, Ms. Bickley testified that there should have been two (2) ice monitors on ice at the time of the accident. 20. There is conflicting testimony between Ms. Bickley and Mr. Frey regarding the defect in the boards . Ms . Bickley te stified that when she checked the boards after the accident, there was an one inch separation Defendants' "I" of boards at the location of the accident. Exhibit pg. 36). Further, she testified that the separation was big enough for someone's thumb to get caught . The testimony of Ms. Bickley raises an issue of fact when compared to the testimony of Mr. Frey cited by Defendants. Mr. Frey testified that he also inspected the boards after separation in boards. Defendants' the accident, but did not see any the "E" Exhibit pg . 5 4 ). However, Ms. Bickley testified the separation in the boards was serious enough that a screw had to be used to fix the separation. 9 9 of 12 FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020 21. A jury could reasonably infer that had two (2) ice monitors been present inspecting the boards, they would likely have discovered the defect in one (1) hour and forty (40) minutes of skating. Since they only had one (1) untrained ice monitor the defendants are liable for negligent supervision and monitoring. POINT IV PLAINTIFF'S CLAIM OF PTSD SHOULD NOT BE DISMISSED 22. Under Education Law 7701(2), an Licensed Clinical Social Worker (LCSW) can diagnose "mental, emotional, behavioral, addictive and disabilities" developmental disorders and and can administer and interpret tests of psychological functioning, create assessment-based treatment plans and provide short-term and long-term psychotherapy and psychotherapeutic treatment. The Court in Vergine v. Phillips held that these are functions comparable to those of a psychologist. Vergine v. Phillips, 167 A.D.3d 1319 (3d Dep't 2018). Further, the Court opined that for licensing purposes, an LCSW must have at least three years full-time supervised postgraduate clinical social work experience in diagnosis, psychotherapy and assessment-based treatment plans, or its part-time equivalent, obtained over a continuous period not to exceed six years, under the supervision of a psychiatrist, a licensed psychologist, or an LCSW in a facility setting. Id. The Court held that given the similarities, an LCSW is competent to render an opinion as to whether a person has PTSD for purposes of establishing a serious injury. Id. 10 10 of 12 FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020 23 . The Plaintiff in Vergine was diagnosed with PTSD by a LCSW. The LCSW provided psychotherapy treatment to the Plaintiff for over a year. Id. The LCSW averred that she personally witnessed physical anxiety exhibited by the Plaintiff. Id. Further, the LCSW stated that the Plaintiff was both significantly limited in her ability to drive and also distressed as a passenger, conditions that impacted her independence and imposed a significant limitation of psychological function. Id. The Court held that this submission presents an issue of fact as to whether the Plaintiff sustained causally-related PTSD. Id. 24. In the case at hand, Plaintiff JM was diagnosed with PTSD by a Ms. Roma Timmerman. Ms. Timmerman stated in her report that re- LCSW, experiencing the accident causes JM increased arousal, meaning her system is on activation mode at times more frequent than normal. (Exhibit "F") . JM treated with Ms. Timmerman after the accident, when she diagnosed her with PTSD. Further, Ms. Timmerman also opined that "JM has reported feeling self-conscious of her thumb, and had to halt some social activities like gymnastics due to her thumb and sleep-overs due to her symptoms of "F" bed-wetting. (Exhibit ) . The halting of social activities due to her physical anxiety is similar to the conditions the Plaintiff experienced in Vergine. In that case, the Plaintiff was distressed to be a passenger in a vehicle after the subject accident. Here, JM has felt self-conscious of her thumb and has even had to halt some social activities due to her thumb. As such, there is a clear issue of fact and Plaintiff's claim of PTSD should not be dismissed. 11 11 of 12 FILED: NEW YORK COUNTY CLERK 01/07/2020 05:34 PM INDEX NO. 150239/2017 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/07/2020 CONCLUSION 25. Summary judgment is not appropriate when there are triable issues of fact for a jury to decide. It is well settled that in order to grant summary judgment, it must clearly appear that no material issue of fact has been Salino (2nd presented. v. IPT Trucking, Inc., 203 A.D.2d 352 Dept. 1994). Since summary judgment is the procedural equivalent of a trial, any doubt as to the existence of a triable issue, or where the material issue of fact is "arguable", requires denial of summary judgment. Id. Accordingly, the instant case demonstrates issues of fact that require defendants' jury determination. The motion for summary judgment, therefore should be denied. Dated: White Plains, NY January 7, 2020 Bai an McMillan,-LLP By: Whn J. Üai)1y, Esq. Attorneyg'for Plaintif f s 244 / Westchester Avenue Suite 410 White Plains, NY 10604 (914) 684-9100 12 12 of 12