Summary
In Brooks-Torrence, where plaintiff alleges to have tripped and fallen on a plastic bag located on steps, the court granted defendant summary judgment finding, in part, no constructive notice because "plaintiff testified that she did not see the plastic bag or any other debris on the staircase when she arrived at defendant's building, only seeing the bag after she fell" (id. at 536).
Summary of this case from Martinez v. G&R Garage Inc.Opinion
16209 305549/10
11-24-2015
Rhonda BROOKS–TORRENCE, Plaintiff–Appellant, v. TWIN PARKS SOUTHWEST, Defendant–Respondent.
Pollack, Pollack, Isaac, & DeCicco, LLP, New York (Jillian Rosen of counsel), for appellant. Casone & Kluepfel, LLP, Garden City (Ajay C. Bhavnani of counsel), for respondent.
Pollack, Pollack, Isaac, & DeCicco, LLP, New York (Jillian Rosen of counsel), for appellant.
Casone & Kluepfel, LLP, Garden City (Ajay C. Bhavnani of counsel), for respondent.
Opinion
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered on or about June 6, 2014, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff alleges that she was descending a staircase in a building owned by defendant when she slipped and fell on urine that was dripping off of the stairwell's handrails. Plaintiff testified that she did not see urine on the step before she fell, but that she saw a puddle of urine on the landing area and the step after she returned to the accident location about 20 minutes after the accident.
Defendant made a prima facie showing that it neither created the urine condition, nor had actual or constructive notice of its existence (see Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 646 N.E.2d 795 1994; see also Pfeuffer v. New York City Hous. Auth., 93 A.D.3d 470, 471, 940 N.Y.S.2d 566 1st Dept.2012 ). Defendant showed that it lacked actual notice of the condition by submitting the deposition testimony of a security guard who was stationed at the building at the time of the accident; she testified that she did not recall receiving a complaint about the staircase on the day of the accident before the incident occurred. Defendant showed that it lacked constructive notice of the urine on the staircase, by submitting plaintiff's deposition testimony, which shows that the urine that caused her to fall “could have been deposited there only minutes or seconds before the accident[,] and any other conclusion would be pure speculation” (DeJesus v. New York City Hous. Auth., 53 A.D.3d 410, 861 N.Y.S.2d 31 1st Dept.2008 [internal quotation marks omitted], affd. 11 N.Y.3d 889, 873 N.Y.S.2d 259, 901 N.E.2d 752 2008 ).
In opposition, plaintiff failed to raise a triable issue of fact.