Opinion
16555 Index No. 33480/18 Case No. 2022–01569
10-27-2022
Danette HARTLEY, Plaintiff–Respondent, v. BURNSIDE HOUSING DEVELOPMENT FUND CORP., Defendant–Appellant.
Nicoletti Spinner Ryan Gulino Pinter LLP, New York (Matthew G. Corcoran of counsel), for appellant. Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph III of counsel), for respondent.
Nicoletti Spinner Ryan Gulino Pinter LLP, New York (Matthew G. Corcoran of counsel), for appellant.
Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph III of counsel), for respondent.
Kapnick, J.P., Mazzarelli, Friedman, Shulman, Rodriguez, JJ.
Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered October 19, 2021, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff alleged that she slipped and fell on a wet condition on the first step down from the fifth-floor landing in a building owned and maintained by defendant. She testified that urine and other liquids on the stairs was an ongoing and recurring condition about which she had complained many times to defendant.
The court should have granted defendant summary dismissal of the complaint. Defendant demonstrated prima facie that it did not have actual or constructive notice of the dangerous condition by producing evidence of its maintenance activities on the day of the accident, specifically, that the wet condition did not exist when the stairs were cleaned by the porter less than three hours before plaintiff fell (see Ross v. Betty G. Reader Revocable Trust, 86 A.D.3d 419, 421, 927 N.Y.S.2d 49 [1st Dept. 2011] ), and that there were no complaints about a wet condition on the stairs in the morning prior to her accident (see Rivera v. 2160 Realty Co, L.L.C., 4 N.Y.3d 837, 838–839, 797 N.Y.S.2d 369, 830 N.E.2d 267 [2005] ). Defendant was not required to produce a written schedule or log of its cleaning activities; the unrefuted testimony of its porter was sufficient. The porter's testimony also established that there was a reasonable cleaning schedule in place that addressed the alleged ongoing and recurring condition (see DeJesus v. New York City Hous. Auth., 53 A.D.3d 410, 411, 861 N.Y.S.2d 31 [1st Dept. 2008], affd 11 N.Y.3d 889, 873 N.Y.S.2d 259, 901 N.E.2d 752 [2008] ).
Plaintiff failed to raise an issue of fact concerning who created the wet condition and when (see Rosado v. New York City Hous. Auth., 194 A.D.3d 586, 587, 144 N.Y.S.3d 340 [1st Dept. 2021] ). Plaintiff presented no evidence that the ongoing and recurring condition was routinely left unaddressed by defendant, nor did she raise a factual issue that defendant's cleaning routine "was manifestly unreasonable so as to require altering it" ( Thomas v. Sere Hous. Dev. Fund Corp., 175 A.D.3d 1129, 1129, 108 N.Y.S.3d 10 [1st Dept. 2019] ).