Opinion
69 150104/10.
01-28-2016
Tyrone COVINGTON, Plaintiff–Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellant. Diamond & Diamond, LLC, Brooklyn (Stuart Diamond of counsel), for respondent.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellant.
Diamond & Diamond, LLC, Brooklyn (Stuart Diamond of counsel), for respondent.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered on or about October 15, 2014, which denied defendant's (NYCHA) motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
NYCHA failed to establish prima facie that it did not have constructive notice of the urine condition in its building's stairwell that caused plaintiff's accident. Its supervisor of caretakers stated that the caretaker assigned to the building conducted a “walk down” of the building on the morning of the accident in adherence to a routine cleaning schedule. However, NYCHA submitted no deposition testimony or affidavit by the caretaker himself stating that he followed the cleaning schedule that day and setting forth what he observed during the “walk down” (see Hawthorne–King v. New York City Hous. Auth., 128 A.D.3d 539, 10 N.Y.S.3d 32 1st Dept.2015; Gautier v. 941 Intervale Realty LLC, 108 A.D.3d 481, 970 N.Y.S.2d 191 1st Dept.2013 ). Plaintiff's deposition testimony that he did not notice the condition when he used the stairs earlier on the morning of the accident does not definitively establish NYCHA's lack of notice (Wade–Westbrooke v. Eshaghian, 21 A.D.3d 817, 802 N.Y.S.2d 11 1st Dept.2005 ).
In any event, plaintiff raised a triable issue of fact by submitting affidavits by three tenants stating that the urine condition was a recurring condition that NYCHA has failed to take reasonable measures to address, despite their repeated complaints (see Hill v. Lambert Houses Redevelopment Co., 105 A.D.3d 642, 963 N.Y.S.2d 651 1st Dept.2013; Cignarella v. Anjoe–A.J. Mkt., Inc., 68 A.D.3d 560, 890 N.Y.S.2d 542 1st Dept.2009 ).
We have reviewed NYCHA's remaining contentions and find them unavailing.