Opinion
Index No. 22636/2015E
12-10-2021
Tracsey POUGHT, Plaintiff, v. RIVERVIEW REDEVELOPMENT COMPANY, L.P. and Grenadier Realty Corp., Defendants.
Upon the foregoing papers, the motion of the defendants Riverview Redevelopment Company, L.P. (hereinafter "Riverview") and Grenadier Realty Corp. (hereinafter "Grenadier") for summary judgment pursuant to CPLR 3212 dismissing the complaint is decided as follows:
Plaintiff, Tracsey Pought seeks damages for personal injuries allegedly sustained on February 10, 2014, when she slipped and fell on an interior floor in front of an elevator on the defendants' premises/apartment building. Specifically, plaintiff an employee of Verizon Communications, claims that she was lawfully in the apartment building acting within the scope of her employment when she was caused to fall as a result of the interior lobby floor being slippery and wet due to puddles of water. The subject property was owned by Riverview and managed by Grenadier.
Defendants contend that they lacked actual notice because the condition was never observed by an employee or reported to anyone prior to plaintiff's accident. Defendants also maintain that there is no evidence to demonstrate that the alleged condition that the plaintiff claims caused her to fall was not on the lobby floor long enough for the defendants' employees to discover and remedy it before the accident. In support of its arguments, defendants rely primarily on the deposition testimony of the plaintiff. She testified that she slid and fell in front of the third elevator in the main lobby. The plaintiff claims she was looking straight before she fell. She further testified that after she fell, she noticed water and slush on the lobby floor. David Santiago, the resident superintendent for the subject building on the day of the accident testified that at the time of the alleged incident, Climaco Martinez was the maintenance worker assigned to clean and mop the lobby. Mr. Santiago further testified about the general cleaning practices of the building. Mr. Martinez testified that he recalled working an eight-hour shift on the date in question and that he inspected the lobby floor each day in February 2014 when he was on duty. Mr. Martinez further testified that in February 2014 when he was on duty, if there was any precipitation or spilled substances on the floor, he would have immediately mopped the floors, and that he would have also laid rugs on the floor of the lobby whenever it rained or snowed. In addition to the maintenance staff cleaning and inspecting the building throughout the day, Mr. Martinez testified that security officers were stationed in a booth located in the lobby. The security officers who were on duty over three eight-hour shifts, also conducted inspections of the building including the lobby. As such, defendants contend that the evidence in the record unequivocally established that the defendants did not cause or create the alleged wet condition that purportedly caused the plaintiff to slip. Further, the defendants contend that the evidence demonstrates that the lobby floor, where the plaintiff allegedly fell was maintained safely according to a strict inspection and cleaning schedule each day.
In opposition, plaintiff argues that the deposition testimony of defendants' employees and witnesses, demonstrate positively that they have no recollection of when they last inspected or cleaned the lobby floor where the accident occurred, if at all. In addition, plaintiff argues that it is irrefutable that defendants' moving papers are completely absent of any evidence whatsoever when the lobby floor was last inspected or cleaned prior to the accident. Plaintiff also relies on two photographs showing the interior lobby with no mats or covering in front of the elevator where the accident occurred.
The court's function on this motion for summary judgment is issue finding rather than issue determination. ( Sillman v. Twentieth Century Fox Film Corp. , 3 NY2d 395 [1957] ). "[T]he proponent of a summary judgment motion 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. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." ( Alvarez v. Prospect Hosp. , 68 NY2d 320, 324, 501 N.E.2d 572, 574, 508 N.Y.S.2d 923, 925-926 [1986] [citations omitted].)
Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. ( Rotuba Extruders v. Ceppos , 46 NY2d 223 [1978].) The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party. ( Jacobsen v. New York City Health & Hosps. Corp. , 22 NY3d 824 [2014].)
A landowner is under a duty to maintain its property in a reasonably safe condition under the existing circumstances, including the likelihood of injury to third parties, the potential that any such injury would be of a serious nature and the burden of avoiding the risk. In order to recover damages, a party must establish that the owner created or had actual or constructive notice of the hazardous condition which precipitated the injury. ( Piacquadio v Recine Realty Corp. , 84 NY2d 967, 969, 646 NE2d 795, 622 NYS2d 493 [1994].) "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 defendant's employees to discover and remedy it." ( Gordon v. American Museum of Natural History, 67 NY2d 836, 837, 492 N.E.2d 774, 501 N.Y.S.2d 646 [1986] ).
"A defendant who moves for summary judgment in a slip-and-fall action has the initial burden of making a prima facie demonstration that it neither created the hazardous condition, nor had actual or constructive notice of its existence" ( Smith v Costco Wholesale Corp. , 50 AD3d 499, 500, 856 N.Y.S.2d 573 [1st Dept 2008] ). "To meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall." ( Mei Xiao Guo v. Quong Big Realty Corp. , 81 AD3d 610, 611, 916 N.Y.S.2d 155 [2d Dept. 2011] [citations omitted]; Quintana v. TCR, Tennis Club of Riverdale, Inc. , 118 AD3d 455, 987 N.Y.S.2d 68 [1st Dept. 2014] [defendant failed to establish a lack of constructive notice of the wet condition on steps where the moving papers contained no indication of when the area was last inspected prior to the accident]; Qevani v 1957 Bronxdale Corp. , 232 AD2d 284, 649 NYS2d 11 [1st Dept. 1996] [issue of fact as to whether existence of condition on steps for 90 minutes constituted constructive notice].)
Defendant's burden to establish a lack of constructive notice may be met by testimony of regular maintenance. ( Raposo v. New York City Hous. Auth. , 94 AD3d 533, 942 N.Y.S.2d 337 [1st Dept. 2012] [burden shifted when defendant's caretaker testified that he followed the janitorial schedule pursuant to which he would have inspected all the staircases in the morning and afternoon, mopped the stairs any time he encountered a wet condition, replaced any light bulbs that were not functioning, and reported the condition to his supervisor]; Raghu v. New York City Hous. Auth. , 72 AD3d 480, 897 N.Y.S.2d 436 [1st Dept. 2010] [janitor's testimony that his regular routine included cleaning the stairwell between 8:00 A.M. and 8:30 A.M., and that he did not observe any powder, was sufficient to shift the burden to plaintiff of demonstrating the existence of questions of fact].)
However, vague testimony as to general cleaning practices lacking specific details is generally not sufficient to establish an entitlement to judgment in the movant's favor. ( Birnbaum v. New York Racing Ass'n, Inc. , 57 AD3d 598, 598-99, 869 N.Y.S.2d 222 [2d Dept. 2008] [defendant failed to meet its burden on the issue of lack of constructive notice where it offered evidence of "general daily cleaning practices," but failed to offer "evidence as to when the area in question was last cleaned and inspected relative to the time when the plaintiff fell," including any "evidence regarding any particularized or specific inspection or stair-cleaning procedure in the area of the plaintiff's fall on the date of the accident."])
In this action, the defendants failed to establish, prima facie, that they did not have constructive notice of the alleged hazardous conditions. While the deposition testimony of the premises' superintendent and maintenance worker submitted by the defendants in support of their motion demonstrated that the maintenance worker and the superintendent inspected and cleaned the premises on a regular basis, the defendants failed to present evidence of when the specific area where the plaintiff fell was last cleaned or inspected before the accident (see Eksarko v Associated Supermarket , 155 AD3d 826, 827 [2nd Dept. 2017] ). Thus, the defendants are not entitled to summary judgment dismissing the complaint.
Accordingly, it is hereby,
ORDERED that defendants' motion for summary judgment is denied.
This is the Decision and Order of the Court.