SUPREME COURT OF THE STATE OF NEW YORK. Defendants. The followine papers have been read on these motions:

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1 SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Cour Justice SARIKA SHAH and RA VI SHAH TRIAL/IS PART 32 NASSAU COUNTY - against - MASALA WOK, INC., SURESH BABU KONDABOLU and LAKSHMI KONDABOLU Plaintiffs Index No. : 2217/09 Motion Seq. Nos. : 01 Motion Dates: 12/13/10 12/13/10 Defendants. The followine papers have been read on these motions: Notice of Motion (Seq. No. 01), Affirmation and Exhibits and Memorandum of Law Notice of Motion (Seq. No. 02), Affirmation and Exhibits Plaintiffs' Affirmation in Opposition to Motions Seq. Nos. 01 and 02 and Exhibits Defendants Kondabolu s Affirmation in Opposition to Motion Seq. No. 01 Motion Seq. No. 01 Replv Affrmation and Exhibit Defendant Masa1a Wok Inc. s Affirmation in Opposition to Motion Seq. No. 02 and Exhibit Motion Seq. No. 02 Reply Affirmation Papers Numbered Upon the foregoing papers, it is ordered that the motions are decided as follows: Defendant Masala Wok, Inc. ("Masala ) moves (Motion Seq. No. 01), pursuant to CPLR g 3212, for an order granting summar judgment and dismissing plaintiffs' complaint and any and all cross-claims on the grounds that there are no triable issues of fact regarding liabilty as against defendant Masala. Plaintiffs and defendants Suresh Babu Kondabolu ("SK") and Lakshmi Kondabolu ("LK") (or collectively defendants Kondabolu) oppose defendant Masala

2 motion. Defendants Kondabolu move (Motion Seq. No. 02), pursuant to CPLR g 3211 and 3212, for an order granting sumar judgment and dismissing plaintiffs' complaint and any and all cross-claims on the grounds that there are no triable issues of fact. Plaintiffs and defendant Masala oppose defendants Kondabolu s motion. This personal injury action arises out of a trip and fall accident that occurred at the rear entrance/exit of defendant Masala, an Indian and Chinese restaurant located at 107 Broadway, Hicksvile, New York. It is alleged that on November , at approximately 7:45 p. plaintiff Sarka Shah ("SS") was exiting defendant Masala after having dined there with her husband. Plaintiff was exiting, by herself, through the rear of the restaurant to the municipal parking lot where her automobile was parked. While exiting, plaintiff SS tripped and fell on a bunched up" mat on the platform exit of the restaurant. PlaintiffSS' s left foot made contact with the bunched up mat, causing her to trip, land on her right foot and sustain injuries to her right foot, specifically a fractured right ane. Plaintiffs' Sumons and Verified Complaint were served on or about Januar Issue was joined by defendant Masala on or about April Issue was joined by defendants Kondabo1u on or about October It is well settled that the proponent of a motion for sumar judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing suffcient evidence to demonstrate the absence of material issues of fact. See Silman v. Twentieth Century- Fox Film Corp. 3 N. Y.2d 395, 165 N. S.2d 498 (1957); Alvarez v. Prospect Hospital 68 N. 2d N. Y.S.2d 923 (1986); Zuckerman v. City of New York, 49 N.Y.2d N. Y.S. 2d 595 (1980); Bhatti v. Roche 140 A.D.2d N. 2d 1020 (2d Dept. 1988). To obtain summar judgment, the moving par must establish its claim or defense by tendering sufficient evidentiar proof, in admissible form, suffcient to warant the cour, as a matter oflaw, to direct judgment in the movant' s favor. See Friends of Animals, Inc. Associated Fur Mfrs., Inc. 46 N. Y.2d N.Y.S.2d 790 (1979). Such evidence may include deposition transcripts, as well as other proof anexed to an attorney s affirmation. See

3 CPLR g 3212 (b); alan v. Farrell Lines Inc., 64 N. Y.2d N. 2d 884 (1985). If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving par to come forward with competent evidence to demonstrate the existence of a materialissue of fact, the existence of which necessarily precludes the granting of summar judgment and necessitates a trial. See Zuckerman v. City of New York 49 N. Y.2d 557, 427 Y.S.2d 595 (1980), supra. When considering a motion for summar judgment, the function of the cour is not to resolve issues but rather to determine if any such material issues of fact exist. See Silman v. Twentieth Century- Fox Film Corp. 3 N.Y.2d 395, 165 N. 2d 498 (1957), supra. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. See Gilbert Frank Corp. v. Federal Ins. Co. 70 N. Y.2d N. 2d 793 (1988). Furher, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the cour in deciding this tye of motion is not to resolve issues of fact or determine matters of credibilty, but merely to determine whether such issues exist. See Barr v. Albany County, 50 N.Y.2d 247, 428 N. Y.S.2d 665 (1980); Da/iendo Johnson 147 A.D.2d N. 2d 987 (2d Dept. 1989). Defendant Masala submits (Motion Seq. No. 01) that it is entitled to summar judgment as it claims that based, upon the sworn testimony of the paries, the plaintiffs' pleadings and the affdavit of Harinder Dhall, owner of defendant Masala, plaintiffs canot establish that defendant Masala created the alleged dangerous condition or that the defendant Masala had actual or constructive notice of same. Defendant Masala states that plaintiff SS testified at her Examination Before Trial ("EBT") that she did not observe any dangerous condition upon entering the rear door of defendant Masala restaurant approximately one hour or so before her accident. Plaintiff SS testified that she did not recall seeing the bunched up mat when she had entered the restaurant earlier in the evening. Defendant Masala asserts that plaintiffs never made any complaints to anyone about the mat at issue nor the condition of the rear entrance/exit prior to plaintiffss' s accident. Thus

4 defendant Masala submits, there exists no evidence that the alleged condition existed for any appreciable time to give it constructive notice, but rather the evidence supports the opposite conclusion that, an hour or so prior to plaintiff SS' s accident, the area was in good condition. Defendant Masala fuher denies that there were any prior similar accidents at the restaurant and that it never received prior notice of a problem with the subject mat. Defendant Masala submits that the area where the mat was located was cleaned twice a day - once in the morning and once at night - to insure that it was safe for patrons of defendant Masala. Defendant Masala argues that in order for plaintiffs to make a prima facie case of negligence, they must establish the existence of a dangerous or defective condition in the first instance. Pilato v. Diamond 209 A.D.2d N. Y.S. 2d 446 (2d Dept. 1994). To impose liabilty on a defendant in a trip and fall accident, there must be evidence that the defendant either created the condition or had actual or constructive notice of same. Hayden v. Waldbaum, Inc. 63 AD.3d N.Y.S.2d 351 (2d Dept. 2009). To impose liability, plaintiffs must establish that a dangerous or defective condition existed in the mat. If there is no indication in the records that the defendants created the alleged dangerous condition, or had actual notice of, plaintiffs must then proceed under a theory of constructive notice. To constitute constructive notice, a defect must be visible and apparent and must exist for a sufficient length of time prior to the accident in order to permit the defendant's employees an opportunity to discover and remedy it. Rabadi v. Atlantic Pacifc Tea Company Inc. 268 AD.2d N.Y.S.2d 316 (2d Dept. 2000). Defendant Masala submits that it did not breach its duty to plaintiff as there is no evidence that defendant Masala caused or created the defect or had actual or constructive notice of same. Defendant Masala also argues that plaintiffs have not offered any evidence that establishes that the subject mat was dangerous or defective on the date of incident. Defendants Kondabolu submit (Motion Seq. No. 02) that they are the out of possession owners of the premises in which defendant Masala restaurant was located. Defendant SK testified at his EBT that he is the owner ofthe premises located at 107 Broadway, Hicksvile and

5 that, in 2006, he purchased the propert from Vikas Dhall, the brother of Harinder Dhall, the owner of defendant Masala. He testified that said propert consists of two stores on the ground floor and two offices upstairs and that said propert is in the same condition today as it existed when he purchased it. He testified that when he purchased the premises he did not notice the mat or the platform in the rear of defendant Masala restaurant and he did not know who built the platform. He testified that the first time that he recalled seeing the platform and rug in the back of the building was after this instant lawsuit was commenced. He stated that he would visit the premises about once a month to collect his rent, but he generally only used the front door. He added that the only changes that he made to the premises after he purchased it was to change the roof of the building three years ago and that when he purchased the propert it was inspected and he did not receive any violations with regard to the rear door area or the sidewalk. Defendants Kondabolu argue that the sworn testimony of plaintiff SS firmly establishes that the accident occured when her foot contacted a bunched up mat at the back entrance of defendant Masala restaurant causing her to trip and fall. The sworn testimony of all of the paries, including plaintiff SS, further establishes that there was no prior notice of the mat being bunched up or crupled prior to the accident. Plaintiff SS herself testified that she used the same entrance on the way into the restaurant and did not notice any problem with the area and had no difficulties entering defendant Masala restaurant or using the platform. Defendants Kondabolu submit that "sumar judgment is appropriate given that there is no evidence of creation or notice ofthe defective condition which caused plaintiff to fall. Plaintiffs testimony was clear that the cause of her accident was the fact that her foot hit the bunched up rug, causing her to lose her balance and fall. Any reference to the height of the platform under the restaurant awning, which was apparently installed by the restaurant prior to Mr. Kondabolu s purchase of the propert, is irrelevant as plaintiffs testimony established that this had nothing to do with the actual cause of the plaintiff s loss of balance, which occured as a result of her foot hitting the bunched up rug, In fact, the plaintiff testified that the platform did not move either on her way. into the restaurant, nor on her way out." Defendants Kondabolu argue that, with respect to

6 constructive notice, it is clear that no evidence can be produced to show that defendants Kondabo1u had constructive notice of a specific defective condition which was the proximate cause of plaintiff SS' s fall. "Nothing in plaintiffs deposition testimony can in any way be constred to establish constructive notice on defendants Kondabolu. As previously noted plaintiff at no time immediately prior to the accident had any difficultly in traversing the area upon which she fell. There is absolutely nothing in the testimony provided by plaintiff that could give any indication with regard to the length of time this bunched up rug condition purortedly existed prior to the accident. Without such evidence to support this inference, any finding that an alleged defective condition existed for any length of time prior to the accident would be sheer speculation at best." In opposition to the defendants' motions, plaintiffs assert that at the time of the accident plaintiffss "fell over a ' bunched up' rug used as a floor mat haphazardly placed on the entrance/exit steps immediately outside of a restaurant located at 107 Broadway, Hicksvile New York. Defendants, the owners and operators of the restaurant and premises, maintained a dangerous rear step platform at the subject rear entrance/exitway. Upon information and belief it was originally created by defendant Masala Wok, Inc..., the operator of the premises. On the date of the accident, Masala Wok, leased the premises from co-defendant owners, Suresh Babu Kondabolu and Lakshmi Kondabolu. As a result of the accident, Sarika Shah sustained serious permanent injuries which included a fractured right ane necessitating surgery." Plaintiffs argue that "(n)ot only did the loose mat of outdoor careting present a hazard, but the height of the platform exceeded the safe height allowed by the regulations for stair risers." In support of this argument, plaintiffs offer the affidavit of their expert witness, Jacques Wolfner, a licensed professional engineer in the State of New York. See Plaintiffs' Affrmation in Opposition Exhibit A. Mr. W olfner stated that "the height of the platform above the sidewalk is excessive and too high for a convenient and biometrically acceptable step. The careting is classified as anon-required equipment. The loose careting is subject to movement, slipping and bunching. Plaintiffs contend that, according to the EBT testimony of Harinder Dhall, defendant Masala

7 was in control of the premises and that the mat was a dangerous condition created by defendant Masala. Additionally, defendant Masala knew the platform was at the rear exit of the restaurant and did not remedy this dangerous condition. Plaintiffs add that "(c)learly co-defendant, Suresh Babu Kondabolu was aware of the dangerous condition created by the platform and directed his tenant to remedy it." Plaintiffs contend that there is a question of fact as to which defendant assumed responsibility for repairing the dangerous condition that was not corrected before plaintiffss was seriously injured. Plaintiffs state that "(c)o-defendant, Masala Wok, placed and maintained the loose mat thrown on top of the rear steps immediately outside of the rear exist of the restaurant. Clearly, the mat was not secured and its abilty to ' bunch up' and create a tripping hazard was foreseeable. A reasonable operator of a restaurant would recognize that the improper platform and the unsecured mat created a dangerous condition. Defendants Suresh Babu Kondabolu and Lakshmi Kondabolu were owners of the premises and thus have absolute liabilty for any dangerous condition....it is also reasonable to conclude that both defendants were negligent in the operation and maintenance of the premises in that they failed to remedy a dangerous condition and they failed to properly maintain a safe means of egress from the rear of their premises." Plaintiffs argue that the defendants created and maintained the dangerous condition that caused plaintiff SS' s trip and fall "over a loose and unsecured mat which was located on an uneven platform resting upon the sidewalk" and are therefore liable. In reply to plaintiffs' opposition, defendants Kondabolu state that the report of plaintiffs expert is inadmissible as a matter of law in that it is not affirmed and not in evidentiar form and thus the Cour must not even consider the purorted expert report and the claims therein. Defendants Kondabolu add that "even if the Cour were to consider Mr. Wolfner s report, which it should not, it is respectfully submitted that plaintiffs' opposition is fatally flawed in that no where does it contradict or dispute the fact that the cause ofp1aintiffs trip and fall was the bunched up rug. This was what caused the plaintiff to stuble and fall, and same was admitted by plaintiff at her deposition, and was confirmed by the allegations of plaintiff s own complaint. While Mr. W olfner opines as to various theories as to the dimensions of the platform, none of

8 these were mentioned by plaintiff at her deposition, or are otherwise relevant to the plaintiffs own testimony that the cause of her fall was the bunched up rug upon which she tripped.... In fact there is no testimony or evidence that the plaintiffs foot ever came in contact with the lip of the step, or in any way caused her fall. It is uncontroverted that the alleged cause of her fall was the contact by her foot with the bunched up rug. The fact that she may have fallen off a step which was allegedly one inch too high is irrelevant as to the cause of her fall, and was in no way a proximate cause of her prior trip over the rug." Defendants Kondabolu furher state that " (i)t is significant to note that the plaintiff testified that the platform never moved priorto the accident eliminating any movement ofthe platform as a proximate cause ofthe accident. It should also be recalled that she testified that she has used the same area of the way into the restaurant, and that she did not notice any movement of the platform or rug on her way in. Additionally, she did not have any trouble stepping up onto the platform on her way in to the restaurant. Thus any argunents that the platform was unstable is not supported by any testimony or admissible evidence, and therefore based entirely upon improper attorney generated speculation, which the New York Court of Appeals has held to be wholly insufficient to defeat summar judgment." In reply to plaintiffs' opposition, defendant Masala also states that plaintiffs' expert report of Jacques Wolfner is not affirmed and thus inadmissible. Defendant Masala adds (s)ettingaside the inadmissibility of Mr. Wolfner s report, even if the Cour considers same, its reasoning and the legal ramifications of same are flawed. Mr. Wolfner attributes the proximate cause to a structural defect referable to the step outside the restaurant and/or a loose caret. Despite the forgoing, Masala, as a tenant at the premises, was not responsible for strctural repairs to the building...paragraph ' 4' of the lease the owner was responsible for all strctural repairs and reserved the right ofreentry...any alleged defects or violations of the applicable Building Code referable to the construction and repair of the step are clearly not applicable to Masala." Defendant Masala contends that "(s)etting aside the evidentiar problems with Mr. Wolfner s report, plaintiffs' case against movant devolves into the single issue of notice. In short, there is none. Plaintiffs canot establish that movant caused or created the defect, or if it

9 had notice of same, had suffcient time to remedy it. As there is no proof in admissible form establishing Masala s breach of any readily definable standard of care, the complaint should be dismissed in its entirety. In seeking sumar judgment dismissing the complaint, defendants have the initial burden of establishing that they did not create the alleged dangerous condition and did not have actual or construction notice of it. Y.S. 2d 653 (4 Dept. 2003). See Pelow v. Tri-Main Development 303 AD.2d 940, 757 Of course, a defendant must have either actual or constructive notice of the hazardous condition that caused the plaintiffto slip and/or fall. See Piacquadio v. Recine Realty Corp., 84 Y.2d 967, 662 N. Y.S.2d 493 (1994); Gordon v. American Museum of National History, 67 Y.2d N. S.2d 646 (1986). To be entitled to sumar judgment in a premises liability action, the propert owner/lessor is required to establish that it maintained its premises in a reasonable safe maner and that it did not create a dangerous condition which posed a foreseeable risk of injur to individuals expected to be present on the propert. See Westbrook v. WR Activities-Cabrera Markets 5 AD.3d 69, 773 N. S.2d 38 (pt Dept. 2004). In a premises liability action, the plaintiff may satisfy the burden of showing that the propert owner was on notice of the dangerous condition that allegedly resulted in the plaintiff s injur by producing evidence that an ongoing dangerous condition existed in the area of the incident, which condition was left unaddressed by the propert owner. See Talavera v. New York City Transit Authority, 41 A. 3d 135, 836 N.Y.S.2d 610 (1 st Dept. 2007). Where the plaintiff proceeds on the theory of constructive notice, the plaintiff must ultimately prove at trial that the defect which caused the accident was visible and apparent, and that it existed for a suffcient length of time prior to the accident to permit the defendant (or its employees) to discover and remedy it. See Gordon v. American Museum ofnaturaz History, supra; Daniely v. County of Westchester 297 AD.2d 654, 747 N. 2d 239 (2d Dept. 2002), Iv to app den. 100 N. Y.2d 501, 760 N. Y.S.2d 764 (2003).

10 A plaintiff must demonstrate that a defendant's negligence was a substantial cause of incident. See Howard v. Poseidon Pools, Inc. 72 N. 2d N. 2d 360 (1988). For a defendant owner to prevail or a sumar judgment motion regarding a slip and fall action, the owner is required to establish as a matter of law that the owner maintained the propert in question in a reasonably safe condition, and that it neither created the alleged dangerous condition existing nor had actual or constructive notice thereof. 13 AD. 3d 709, 786 N. Y.S. 2d 222 (3d Dept. 2004). See Mokszki v. Pratt Based upon the evidence and legal arguments presented to the Cour in their motions, the Cour finds that the defendants have established, prima facie that they neither created or had actual or constructive notice of the condition alleged to have caused plaintiff SS' s fall. As previously stated, if a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving par to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of sumar judgment and necessitates a trial (emphasis added). York, supra. See Zuckerman v. City of New As defendants argued, the report of plaintiffs' expert, Jacques Wolfner, is not affrmed and therefore does not constitute competent evidence. Unsworn reports that do not indicate that a person has the education and experience to qualify as an expert are insufficient to raise a triable issue of fact and defeat a motion for summar judgment. See New York Cent. Mutual Fire Ins. Co. v. Turnerson s Elec., Inc. 280 AD.2d 652, 721 N.Y.S.2d 92 (2d Dept. 2001). See also 1212 Ocean Ave. Housing Development Corp. v. Brunatti 50 A.D.3d Y.S.2d 649 (2d Dept. 2008) (holding that unsworn reports from two engineers submitted in support of application were not in admissible form); Ells v. Wiloughby Walk Corp. Apartments 27 AD.3d N. 2d 775 (2d Dept. 2006) (holding that the unsworn engineer s report was not in admissible form for sumar judgment); Mecabe by Mecabe Shmulevich 209 A. 2d N. 2d 108 (2d Dept. 1994) (holding that plaintiffs failed to meet their burden as the report prepared by their expert was not in admissible form). While plaintiffs' ultimate burden at trial is to prove that the defendants ' conduct was the 10-

11 proximate cause of plaintiff SS' s injuries (see Barker v. Parmossa 39 N.Y.2d 926, 386 Y.S.2d 576 (1976)), here plaintiffs are required, in opposing defendants ' sumar judgment motions to raise issues of fact that defendants created the alleged dangerous condition. The Cour finds that plaintiffs have failed to raise triable issues of fact and therefore failed to meet their burden. Consequently, defendant Masala s motion for sumar judgment (Motion Seq. No. 01) and defendants Kondabolu s motion for sumar judgment (Motion Seq. No. 02) are hereby granted. This constitutes the Decision and Order of this Cour. ENTE1t SE L. SHER, A. S.. Dated: Mineola, New York March \1\\ R () '\ COU\ N"SS U f\ SOff\CE \'( c\. CO\) 11-