Opinion
28506/02.
Decided July 30, 2007.
Defendant New York City Transit Authority moves for an order dismissing plaintiff's complaint pursuant to CPLR §§ 3211 and 3212.
Plaintiff allegedly slipped and fell in a puddle of water at defendant's train station after going through the turnstile. Plaintiff states that it was raining or drizzling on the date of the accident and that she did not see the puddle of water before she slipped. In her complaint, plaintiff alleges that defendant was negligent in maintaining the station by knowingly permitting an unsafe condition, particularly the puddle of water, to remain on the premises.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). In light of such a showing, if the party opposing the motion comes forward with evidence of issues of fact requiring a trial, the motion will be denied. Rebecchi v. Whitmore, 172 AD2d 600 (2nd Dept 1991). In reviewing a motion for summary judgment, the court accepts as true the evidence presented by the non-moving party. Fleming v. Graham, 34 AD3d 525 (2nd Dept 2006).
To establish a prima facie case of negligence in a "slip-and-fall" action, a plaintiff must "demonstrate that the defendant either created the condition which caused the accident, or had actual or constructive notice of the dangerous condition and a reasonable time within which to correct it or warn about its existence (citations omitted)." Maguire v. Southland Corp., 245 AD2d 347, 348 (2nd Dept 1997). See Nearchou v. Broadway Mall Properties, Inc., 270 AD2d 468 lv denied 95 NY2d 763 (2000). To constitute constructive notice, a defect must be "visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit discovery and a remedy (citations omitted)." Maguire v. Southland Corp., 245 AD2d at 348, supra. However, the duty of landowners is such that they are not required to provide a constant, ongoing remedy when an alleged slippery condition is said to be caused by moisture tracked indoor during an ongoing storm or for a reasonable time thereafter. See Solazzo v. New York City Transit Authority, 6 NY3d 734 (2005); Miller v. Gimbel Bros., Inc., 262 NY 107 (1933); Kershner v. Pathmark Stores, Inc., 280 AD2d 583(2nd Dept 2001); Hussein v New York City Transit Authority, 266 AD2d 146 (1st Dept 1999). A "general awareness' that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition" that caused an injury. Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994). See Baumgartner v. Prudential Ins. Co. of America, 251 AD2d 358 (2nd Dept 1998); Gonzalez v. Jenel Management Corp., 11 AD3d 656 (2nd Dept 2004); Solazzo v. New York City Transit Authority, 6 NY3d at 735, supra.
Defendant argues that it had neither actual nor constructive notice of the condition that caused plaintiff to slip and fall. It alleges that there is no evidence that the wetness or the puddle was there for a sufficient period of time which would allow it to discover and remedy the situation because the rainfall was ongoing. In support of its contention that the rain was ongoing, defendant submits the transcript of the statutory hearing wherein plaintiff stated that at the time of the accident "it was drizzling, raining" and "everything was wet." Similarly, at plaintiff's examination before trial, she describes the weather on the date of said accident as "raining, cold, slippery." Defendant also submits the weather report for New York City for the date of the accident which indicates that it was continuously raining from the night prior to the accident through the time the accident occurred. The Court finds that defendant has met its initial burden of establishing that it neither created the condition which caused plaintiff's accident nor did it have constructive notice of the condition. The burden now shifts to the plaintiff.
In opposition to the motion, plaintiff submits the report of the station cleaner wherein he stated that the condition of the area at the time of the accident was clean and dry and that the weather was clear. Plaintiff argues that this discrepancy between the station cleaner and her testimony creates a question of fact sufficient to defeat defendant's motion. However, the court is required to "accept the opposing party's version of the facts as true." Jablonski v. Rapalje, 14 AD3d 484 (2nd Dept 2005). All of the credible evidence, including the testimony of the plaintiff, indicates that it was raining at the time of the accident. The defendant cannot be held liable for an injury caused by a storm that was in progress at the time of the accident. See Taylor v New York City Transit Authority, 266 AD2d 384 (2nd Dept 1999). However, even assuming that the weather was clear, as the station cleaner indicated, plaintiff must still show actual or constructive notice of a dangerous condition. In an attempt to establish notice to the defendant, plaintiff states in her affidavit that "the day I fell was not the first time I saw collections of water coming down from the platform above, down the stairs and onto the mezzanine area." However, this self serving statement fails to establish actual or constructive notice to the defendant of a recurring dangerous condition. See Gloria v. MGM Emerald Enterprises, Inc., 298 AD2d 355 (2nd Dept 2002).
The Court finds that plaintiff has failed to come forward with evidence of issues of fact requiring a trial.
In view of the foregoing, defendant's motion for summary judgment is granted and the complaint is dismissed.
The foregoing shall constitute the Decision and Order of the Court.