Opinion
21394/2013E
07-06-2018
Julio GUERRERO, Plaintiff, v. RUDIN MANAGEMENT CO. INC., Defendant.
Counsel for defendant: Nicoletti Gonson Spinner Ryan Gulino Pinter LLP (Costas Cyprus, Esq.) Counsel for plaintiff: Sullivan Law Firm (Timothy M. Sullivan, Esq.)
Counsel for defendant: Nicoletti Gonson Spinner Ryan Gulino Pinter LLP (Costas Cyprus, Esq.)
Counsel for plaintiff: Sullivan Law Firm (Timothy M. Sullivan, Esq.)
Mary Ann Brigantti, J.
The following papers numbered 1 to 5 read on the below motion noticed on February 28, 2018 and duly submitted on the Part IA15 Motion calendar of April 12, 2018:
Papers Submitted/Numbered
Defs.' Notice of Motion, Exhibits 1,2
Pl. Aff. In Opp., Exhibits 3,4
Defs.' Aff. in Reply 5
Upon the foregoing papers, the defendant Rudin Management Co., Inc. ("Defendant") moves for summary judgment, dismissing the complaint of the plaintiff Julio Guerrero ("Plaintiff") pursuant to CPLR 3212. Plaintiff opposes the motion.
I. Background
This matter arises out of an alleged slip and fall accident that occurred on June 22, 2011, on lobby steps inside of Defendant's premises located at 345 Park Avenue in New York, New York. Plaintiff testified that on the date of the accident he was delivering approximately five cases of beverages to a deli located inside the building. Each case consisted of twenty-four bottles, and the cases were stacked on top of one another on a hand truck. Plaintiff walked through the lobby pushing the hand truck in front of him. The deli was located up approximately eight steps from the lobby level of the building. When Plaintiff arrived at the steps he walked up, without the hand truck, in order to speak with a customer who he was supposed to leave the product with (Pl. EBT at 65). After speaking with the customer, Plaintiff walked back down the stairs to retrieve his hand truck (id. at 66). Plaintiff then began to bring the loaded hand truck up the steps (id. ). He did this by pulling the hand truck backwards up the steps one at a time (id. at 66; 70). As he walked, Plaintiff was looking at the hand truck and at the stairs behind him (id. at 67). When Plaintiff was about half-way up the steps, he suddenly fell backward and let go of the hand truck (id. at 72). After he fell, Plaintiff saw a "brownish liquid" on the steps (id ). Plaintiff testified that this condition was in the middle of the step (id. at 84). He testified that the liquid covered "maybe half" the stair, or "less than a foot" (id. at 87) and described it was a "little puddle" that "wasn't deep at all" (id. at 88). Plaintiff testified that when he first went up and down the stairs to talk to the customer, he did not notice the brownish liquid condition on the step (id. at 89). Plaintiff did not see the condition until after he fell (id. at 84; 89).
In support of its motion, Defendant submits the above deposition testimony as well as the deposition testimony of Eugene Simmons, Defendant's building manager. Mr. Simmons testified that the accident location is a large commercial building that has approximately 5,000 tenants and 1,000 visitors on a daily basis (Simmons EBT at 35). He testified that porters are assigned to perform cleaning work in the building and they would continually monitor the lobby throughout the day (id. at 54). Simmons also stated that he would walk through the lobby at least once or twice a day (id. at 35). Simmons did state that there was no set cleaning schedule (id. at 12; 53-54). He never performed a search nor was he ever asked to search for records regarding complaints with respect to hazardous conditions and/or accidents on the stairs in question prior to Plaintiff's accident (id. at 63, 66 & 80).
After the accident, Plaintiff filled out an accident report for his employer. The report stated, in pertinent part, that he became injured when he was walking up the steps and "the hand truck slipped and landed on his right knee."
Defendant argues that the forgoing evidence demonstrates that it did not create, and lacked actual or constructive notice of the defect at issue. In opposition to the motion, Plaintiff asserts that Defendant failed to carry its initial burden of proof because it provided no competent evidence as to Defendant's maintenance and cleaning schedule, or as to when the accident location was last inspected. Plaintiff also contends that his own failure to notice the puddle before he fell does not establish that Defendant lacked notice of the defect.
II. Standard of Review
To be entitled to the "drastic" remedy of summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case." ( Winegrad v. New York University Medical Center , 64 NY2d 851 [1985] ; Sillman v. Twentieth Century-Fox Film Corp. , 3 NY2d 395 [1957] ). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id. , see also Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ). Facts must be viewed in the light most favorable to the non-moving party ( Sosa v. 46th Street Development LLC , 101 AD3d 490 [1st Dept. 2012] ). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact ( Zuckerman v. City of New York , 49 NY2d 557 [1980] ). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility ( Vega v. Restani Constr. Corp. , 18 NY3d 499 [2012] ). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. ( Bush v. Saint Claire's Hospital , 82 NY2d 738 [1993] ).
III. Applicable Law and Analysis
It is well-settled that a landowner must act as a reasonable person in maintaining the property in a reasonably safe condition, in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk ( Peralta v. Henriquez , 100 NY2d 139, 144 [2003] ). To impose liability upon a landowner in a premises liability-related action, there must be evidence that a dangerous or defective condition existed and that the defendant either created or had actual or constructive notice of the condition ( Piacquadio v. Recine Realty Corp. , 84 NY2d 967 [1994] ). To constitute constructive notice, a defect must be visible and apparent, and must exist for a sufficient length of time before the accident to permit defendant's employees to discover and remedy it. (see Gordon v. American Museum of Natural History, 67 NY2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ). Mere notice of a general or unrelated condition is not enough to constitute constructive notice. The particular defect that caused the damage must have been apparent ( id. at 838 ). Importantly, it is not the plaintiff's burden in opposing a motion for summary judgment to establish that defendants had actual or constructive notice of the hazardous condition. Rather, it is defendant's burden to establish lack of notice as a matter of law ( Giuffrida v. Metro N., Commuter R.R. Co. , 279 AD2d 403, 404 [1st Dept. 2001] ). Such a moving defendant must demonstrate the lack of evidence regarding how the alleged condition came into existence, how visible and apparent it was, and for how long a period of time prior to the accident it existed (id ).
In this mater, the testimony from Simmons failed to demonstrate that Defendant lacked actual or constructive notice of the allegedly hazardous liquid condition on the steps. Although Simmons described Defendant's general cleaning and maintenance practices, he failed to offer specific evidence as to its activities on the date of the accident including the last time that the staircase at issue was inspected or maintained before the accident (see Sada v. Theater , 140 AD3d 574 [1st Dept. 2016] ). Moreover, Simmons was unaware of whether there were any prior complaints concerning hazardous conditions on the steps.
Plaintiff's deposition testimony, however, does establish that Defendant had no actual or constructive notice of the allegedly defective condition on the steps. Plaintiff admitted that he went up and down the steps without incident just before his fall and did not notice the allegedly hazardous condition, which establishes Defendant's lack of actual notice (see Trujillo v. Riverbay , 153 AD2d 793, 795 [1st Dept. 1989] ). The foregoing testimony also demonstrates that the condition was not visible and apparent and that Defendant had no opportunity to address the problem before the accident occurred, thus establishing Defendant's lack of constructive notice (see Rosario v. Haber , 146 AD3d 685 [1st Dept. 2017] [no constructive notice of liquid on steps where plaintiff testified that two minutes before the accident she ascended the steps and had not noticed the puddle]; see also Espinal v. New York City Transit Housing Authority , 215 AD2d 281, 281-82 [1st Dept. 1995] [no constructive notice of debris on the steps that caused plaintiff's accident where plaintiff testified that he did not see any "objects or materials" on the stairway when he had walked up the stairs five minutes before his accident occurred]; see also Gomez v. J.C. Penny Corp., Inc. , 113 AD3d 571, 572 [1st Dept. 2014] [plaintiff's testimony that she had passed by the same location within an hour before her accident and did not notice any water on the floor established that it was not "visible and apparent" and did not "exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it"]; see also Rivera v. 2160 Realty Co., L.L.C. , 4 NY3d 837, 838 [2005] ; Berger v. ISK Manhattan, Inc., 10 AD3d 510, 512 [1st Dept. 2004] ). The motion record further establishes that this staircase was used by approximately one thousand individuals on a daily basis and thus any conclusion that an employee of Defendant, as opposed to a member of the general public or any other tenant of the building, created the condition at issue would be mere speculation (see Constanzo v. Women's Christian Ass'n. of Jamestown , 92 AD3d 1256, 1257 [4th Dept. 2012], citing Castore v. Tutto Bene Rest. Inc. , 77 AD3d 599 [1st Dept. 2010] ; Berger v. ISK Manhattan, Inc. , 10 AD3d 510 ).
In opposition, Plaintiff fails to raise an issue of fact. Plaintiff's concession that he ascended and descended the stairs before he fell and did not notice the puddle carried Defendant's burden of proving a lack of notice, even assuming that Defendant failed to show when the stairs were last inspected (see , e.g., Espinal v. New York City Transit Housing Authority , 215 AD2d 281 ). Defendant's alleged failure to have a set cleaning or maintenance schedule does not warrant denial of the motion, because in order to be liable for this incident, Defendant had to have created or had actual or constructive notice of the specific condition at issue (see generally Piacquadio v. Recine Realty Corp. , 84 NY2d 967 ). The matters Porco v. Marshalls Dept. Stores (30 AD3d 284 [1st Dept. 2006] ) and Mehan v. Barksdale Tenants Corp. , (73 AD3d 514 [1st Dept. 2010] ) cited by Plaintiff in opposition, are distinguishable from this matter because in those cases, there was no evidence that the plaintiff had traversed the location only moments before their respective accidents. Plaintiff offers no other evidence in opposition to the motion to raise a triable issue of fact as to whether Defendant created or had notice of the allegedly defective condition.
IV. Conclusion
Accordingly, it is hereby
ORDERED, that Defendant's motion for summary judgment is granted, and it is further,
ORDERED, that Plaintiff's complaint is dismissed with prejudice.
This constitutes the Decision and Order of this Court.