Opinion
2014-07-2
Nicolette FARREN, etc., et al., respondents, v. BOARD OF EDUCATION OF CITY OF NEW YORK, appellant, et al., defendant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers, Margaret King, Sara Gross Kaczmarek, and Shannon Colabrese of counsel), for appellant. Eaton & Torrenzano, LLP, Brooklyn, N.Y. (Jay Torrenzano of counsel), for respondents.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers, Margaret King, Sara Gross Kaczmarek, and Shannon Colabrese of counsel), for appellant. Eaton & Torrenzano, LLP, Brooklyn, N.Y. (Jay Torrenzano of counsel), for respondents.
REINALDO E. RIVERA, J.P., PLUMMER E. LOTT, ROBERT J. MILLER, and COLLEEN D. DUFFY, JJ.
In an action to recover damages for personal injuries, etc., the defendant Board of Education of the City of New York appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (Aliotta, J.), dated August 22, 2012, as denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Board of Education of the City of New York is granted.
On October 30, 2007, the infant plaintiff allegedly was injured when she slipped and fell on a wet floor in the third-floor girls' bathroom at Public School 32 in Staten Island. Thereafter, the infant plaintiff, by her mother, and her mother individually, commenced this action to recover damages, inter alia, for personal injuries. The Supreme Court denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Board of Education of the City of New York (hereinafter the Board of Education).
“ ‘To impose liability on a defendant for a slip and fall on an allegedly dangerous condition on a floor, there must be evidence that the dangerous condition existed, and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time’ ” ( Rodriguez v. Sixth President, Inc., 4 A.D.3d 406, 407, 771 N.Y.S.2d 368, quoting Moody v. Woolworth Co., 288 A.D.2d 446, 446, 732 N.Y.S.2d 645). “ ‘A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected’ ” ( Williams v. SNS Realty of Long Is., Inc., 70 A.D.3d 1034, 1035, 895 N.Y.S.2d 528, quoting Hayden v. Waldbaum, Inc., 63 A.D.3d 679, 679, 880 N.Y.S.2d 351;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). “To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” ( Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598–599, 869 N.Y.S.2d 222;see Williams v. SNS Realty of Long Is., Inc., 70 A.D.3d at 1035, 895 N.Y.S.2d 528;Pryzywalny v. New York City Tr. Auth., 69 A.D.3d 598, 599, 892 N.Y.S.2d 181;Musachio v. Smithtown Cent. School Dist., 68 A.D.3d 949, 949–950, 892 N.Y.S.2d 123;Sherry v. Wal–Mart Stores E., L.P., 67 A.D.3d 992, 993–994, 889 N.Y.S.2d 251;Holub v. Pathmark Stores, Inc., 66 A.D.3d 741, 742, 887 N.Y.S.2d 215;Braudy v. Best Buy Co., Inc., 63 A.D.3d 1092, 1092, 883 N.Y.S.2d 90).
Here, the Board of Education established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the deposition testimony of the custodian engineer assigned to clean the school. He testified that he inspects the school, including the bathrooms, every morning to make sure that it is safe and clean. He further testified that he had last inspected the subject bathroom approximately two to two and one-half hours before the infant plaintiff allegedly was injured, and that there was no liquid on the floor at that time. The Board of Education also submitted the affidavit of a school administrator who averred that the school had not received any complaints regarding water on the floor of the subject bathroom between the time of the inspection and the time of the alleged accident. Additionally, the Board of Education submitted the deposition testimony of the infant plaintiff's mother, who admitted that, prior to the accident, the infant plaintiff never complained to her about water accumulation on the bathroom floors ( see Hernandez v. New York City Hous. Auth., 116 A.D.3d 662, 983 N.Y.S.2d 577;Denker v. Century 21 Dept. Stores, LLC, 55 A.D.3d 527, 528, 866 N.Y.S.2d 681).
In opposition to the Board of Education's prima facie showing of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact as to whether the Board of Education created the condition complained of or had actual or constructive notice of it ( see Rubin v. Cryder House, 39 A.D.3d 840, 834 N.Y.S.2d 316). The plaintiffs' contention that the Board of Education created a dangerous condition by allegedly removing paper towels from the school's bathrooms, causing children to shake water off their hands onto the floor, was based on conjecture and surmise as well as hearsay testimony from the plaintiff's mother, which was insufficient to raise a triable issue of fact ( see Alfonso v. Pacific Classon Realty, LLC, 101 A.D.3d 768, 769, 956 N.Y.S.2d 111;Mayo v. Cedar Manor Mut. Hous. Corp., 96 A.D.3d 913, 914, 946 N.Y.S.2d 486;see also Zuckerman v. City of New York, 49 N.Y.2d 557, 562–563, 427 N.Y.S.2d 595, 404 N.E.2d 718;Rodriguez v. Sixth President, Inc., 4 A.D.3d at 407, 771 N.Y.S.2d 368;Arnold v. New York City Hous. Auth., 296 A.D.2d 355, 356, 745 N.Y.S.2d 26).
Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the Board of Education ( see Crawford v. City of New York, 98 A.D.3d 935, 950 N.Y.S.2d 743).