Opinion
2014-06-24
Nidia E. RODRIGUEZ, Plaintiff–Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant–Respondent.
Manuel A. Romero, P.C., Brooklyn (Jonathan M. Rivera of counsel), for appellant. Wallace D. Gossett, Brooklyn (Jane Shufer of counsel), for respondent.
Manuel A. Romero, P.C., Brooklyn (Jonathan M. Rivera of counsel), for appellant. Wallace D. Gossett, Brooklyn (Jane Shufer of counsel), for respondent.
TOM, J.P., MOSKOWITZ, MANZANET–DANIELS, FEINMAN, GISCHE, JJ.
Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered September 18, 2012, dismissing the complaint pursuant to an order, same court and Justice, entered July 16, 2012, which granted defendant's motion for summary judgment, unanimously affirmed, without costs. Appeal from the aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Defendant's motion for summary judgment was properly granted since defendant demonstrated that it did not create or have actual or constructive notice of the alleged defective condition, oil on the stairs, which allegedly caused plaintiff to fall ( see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986];Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246, 249, 472 N.Y.S.2d 368 [1st Dept.1984], affd. for reasons stated below64 N.Y.2d 670, 485 N.Y.S.2d 252, 474 N.E.2d 612 [1984] ). Defendant presented, among other things, the affidavit of an employee who averred that one hour prior to plaintiff's accident, she cleaned and inspected the stairs where plaintiff fell and “left the ... staircase clean, dry, well lit and free of foreign substances” ( see Gautier v. 941 Intervale Realty, LLC, 108 A.D.3d 481, 970 N.Y.S.2d 191 [2013] ). Contrary to plaintiff's argument, this affidavit, which was sworn to and notarized, is admissible, even though it does not contain the words “under the penalties of perjury,” since such language is only required for affirmations from attorneys, physicians, osteopaths or dentists (CPLR 2106).
Plaintiff has offered no admissible evidence raising a triable issue of fact as to notice. The purported hearsay statement of an unidentified “MTA woman,” “station cleaner” or “token booth agent” does not qualify under the speaking agent exception to the hearsay rule ( see Gordzica v. New York City Tr. Auth., 103 A.D.3d 598, 960 N.Y.S.2d 103 [1st Dept.2013] ), since there is no evidence supporting such a designation, nor is there evidence as to how it was known that this person was an “MTA” employee. Plaintiff's assertion that defendant had constructive notice because the station agent and booth were only a few feet from where plaintiff fell, is not supported by the record.
We have considered plaintiff's remaining contentions and find them unavailing.