This matter comes before the Court on the motion of Defendants seeking summary judgment dismissing the Complaint. Plaintiff has opposed the motion. This case arises from a slip-and-fall incident at Defendants’ bowling alley located on Route 9 in Clifton Park, New York In her Verified Bill of Particulars, Plaintiff alleges that she slipped and fell due to Defendants’ negligence in maintaining the premises, in that the floor near the ball return was excessively slippery, causing her to fall and sustain injury to her hand. The basic standard to be applied by a court addressing a summary judgment motion is well established. The proponent of a summary judgment motion carries the initial burden to make a prima facie showing of entitlement to judgment as a matter of law by presenting sufficient evidence to eliminate any material issues of fact (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). In a slip-and-fall case, a defendant moving for summary judgment bears the initial burden to show that it maintained the subject premises in a reasonably safe manner and neither created the dangerous condition complained of nor had actual or constructive notice of it (see e.g. Levin v. Price Chopper Operating Co., Inc., 94 AD3d 1180 [3d Dept 2012]). If the requisite showing is made, the burden of proof then shifts to the responding party or parties to show the presence of questions of fact requiring trial (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). The facts must be construed in a light most favorable to the non-moving party (see e.g. Hanna v. St. Lawrence County, 34 AD3d 1146 [3d Dept 2006]). Defendants offer the deposition testimony and affidavit of Regional Manager James Tenda to establish that they neither created nor had notice of the slippery condition complained of by Plaintiff. Mr. Tenda describes the methods used to maintain the floors in Defendants’ bowling alleys and points out that Defendants had no prior complaints about slippery floors. However, Mr. Tenda’s testimony and affidavit deal only with Defendants’ general cleaning and inspection practices. Mr. Tenda does not speak to what was or was not done on the date in question. Nor could he, since he had not been at the location at issue since the month prior to the incident in question. Testimony as to general cleaning and inspection practices is not sufficient to make Defendants’ prima facie showing that they lacked constructive notice (see e.g. Butts v. SJF, LLC, 171 AD3d 688 [2d Dept 2019]). Nor are the photographs annexed to Mr. Tenda’s affidavit useful to Defendants, as he asserts no personal knowledge as to when they were taken and his statement that they accurately depict the floor area in question on the date of the incident is also made without personal knowledge (see e.g. Sattar v. City of New York, 2022 WL 108394, — AD3d — [2d Dept 2022]; Whiting v. Bella Vista Dev. Corp, 267 AD2d 662 [3d Dept 1999]). Defendants also argue that Plaintiff is unable to identify the cause of her fall. They point to deposition testimony by Plaintiff that when she noticed that the floor was slippery, she did not look at the floor to see what was making it slippery. Defendants also point to statements in the non-parties’ depositions that they did not specifically know what caused Plaintiff to fall. All of the witnesses, however, testified that the floor in the ball return area was unusually or excessively slippery. In addition, Plaintiff testified that she thought it could be the same substance used to keep the bowling lanes slippery and non-party witness Jeffrey Brooks stated he thought there may have been additional wax on the floor. In addition, Mr. Brooks has submitted an affidavit in opposition to Defendants’ motion in which he states that the floor was coated with what appeared to be the same oil used on the bowling lanes. While a plaintiff’s complete inability to identify the cause of their fall can be fatal to their claim (see e.g. Smith v. Maloney, 91 AD3d 1259 [3d Dept 2012]), a plaintiff can offer circumstantial evidence from which negligence can reasonably be inferred without specifically identifying a cause (Brumm v. St. Paul’s Evangelical Lutheran Church, 143 AD3d 1224 [3d Dept 2016]). Plaintiff here offers the theory that oil used on the bowling lanes was the source of the slipperiness that caused her fall. Mr. Tenda testified as to that process, which notably includes moving the oiling machine from lane to lane in the area adjacent to the ball returns. Viewing the record here in a light most favorable to Plaintiff as the non-moving party, this case falls more in line with Godfrey v. Town of Hurley (68 AD3d 1527 [3d Dept 2009]) cited by Plaintiff. While Plaintiff and the non-party witnesses do not specify the substance that caused the slippery condition, Plaintiff’s claim is deductive, rather than speculative. Defendants next assert that Plaintiff voluntarily assumed the risk of injury associated with the sport of bowling (Turcotte v. Fell, 68 NY2d 432 [1986]). Assumption of risk deals with common risks of a particular sport that are known, apparent or reasonably foreseeable; it is generally a question for the fact-finder (see Clauss v. Bush, 79 AD3d 1397 [3d Dept 2010]). Here, Mr. Tenda testified that the floor in the area of the ball returns should have no finish on it and should be cleaned only with a dry mop using no cleaning compounds. Plaintiff did not assume the risk that oil meant for the bowling lanes would be present in the ball return area, which should by Defendants’ own admission be clean and dry. Finally, in their reply papers, Defendants point out that they filed a Statement of Material Facts pursuant to 22 NYCRR §202.8-g and that Plaintiff failed to respond to it. Defendants argue that all the statements Defendants’ submission are therefore deemed admitted by Plaintiff (22 NYCRR §202.8-g[c]). This is a rule of recent origin and case law considering it is scant. The rule is derived from Rule 19-a of the rules of the Commercial Division of Supreme Court (Siegel, NY Practice §281 96th ed [2021 supp]). While the language of §202.8-g is admittedly mandatory, the two published court decisions applying it take some pains to examine its impact. In the case cited by Defendants, Reus v. ETC Housing Corp., 72 Misc 3d 479 [Sup Ct Clinton Co 2021]), the Court specifically points out that the merits of the motion dictated the same outcome as application of the rule. In Amos Financial, LLC v. Crapanzano (73 Misc 3d 448 [Sup Ct Rockland Co 2021]), the Court reviews caselaw addressing Commercial Division Rule 19-a and holding that a failure to comply with it does not mandate that a court deem facts admitted, but instead leaves the remedy to the court’s discretion. The Amos Financial decision also notes a potential distinction in remedy for a §202.8-g violation depending upon whether the guilty party is the movant or the respondent, noting caselaw under Rule 19-a holding that a rigid application of that rule to otherwise meritorious opposition would be prejudicial. This Court is not inclined to utilize §202.8-g to award summary judgment to Defendants when their motion would otherwise be denied. Such a result would reward “form over function” and would run counter to the oft-stated, over-arching public policy goal of the judiciary to decide cases on their merits (see e.g. Matter of Goldstein v. NYS Urban Dev. Corp., 13 NY3d 511, 521 [2009]; Matter of Estate of Braunstein, 194 AD3d 1165 [3d Dept 2021]; Matter of Lila JJ., 180 AD3d 1169 [3d Dept 2020]; Passeri v. Tomlins, 141 AD3d 816 [3d Dept 2016]; Fuller v. Aberdale, 130 AD3d 1277, 1280 [3d Dept 2015]). The parties remaining contentions have been considered, but do not alter the outcome of this motion. Therefore, in consideration of the foregoing, it is hereby ORDERED, that the motion by Defendants seeking summary judgment dismissing the Complaint in this action is denied. Papers considered: Notice of Motion; Affirmation of Alice Leung, Esq., with annexed exhibits; Statement of Material Facts; Affirmation in Opposition of Derek Spada, Esq., with annexed exhibits; Reply Affirmation of Alice Leung, Esq. Dated: February 23, 2022
