Opinion
154794/2015
02-05-2021
Woon Yin KWAN, Plaintiff, v. CONFUCIUS PLAZA TENANTS ASSOCIATION, INC., Tudor Realty Services Corp., R.Y. Management, Inc., and Chinatown Apartments, Inc., Defendants.
Law Offices of Beth J. Schlossman, Brooklyn, NY ( Beth Schlossman of counsel), for plaintiff. Morris, Duffy, Alonso, & Faley, New York, NY ( Edward J. Harrington of counsel), for defendants Tudor Realty Services Corp and Chinatown Apartments Inc.
Law Offices of Beth J. Schlossman, Brooklyn, NY ( Beth Schlossman of counsel), for plaintiff.
Morris, Duffy, Alonso, & Faley, New York, NY ( Edward J. Harrington of counsel), for defendants Tudor Realty Services Corp and Chinatown Apartments Inc.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 41, 42, 43, 44, 45, 46, 47, 48, 49, 59, 60, 61 were read on this motion for SUMMARY JUDGMENT.
In this slip-and-fall action, defendants Tudor Realty Services Corp. (Tudor) and Chinatown Apartments, Inc. move under CPLR 3212 for summary judgment dismissing plaintiff Woon Yin Kwan's complaint. The motion is granted.
BACKGROUND
Plaintiff resides at 20 Confucius Plaza (the premises) located in New York County. (NYSCEF Doc. No. 55, ¶ 3.) The building is owned by Chinatown Apartments and managed by Tudor.
Plaintiff's accident occurred on a rainy day in October 2014. (NYSCEF Doc. Nos. 52, 56 at 2.) Plaintiff and her daughter, Kate Lee, exited a car in front of the premises at approximately 10:15 a.m. (NYSCEF Doc. No. 56 at 2.) They walked through the first set of doors, a vestibule area, and a second set of doors that led to the lobby. (NYSCEF Doc. No. 56 at 3.) They then walked towards the elevators. Plaintiff and Lee were each holding an umbrella. (NYSCEF Doc. No. 46 at 21.) Lee was also wheeling a suitcase.
As confirmed by surveillance footage, Lee entered the elevator first and plaintiff followed. Upon entering the elevator, plaintiff slipped and fell. ( Id. at 20.) Two other individuals were in the elevator when plaintiff fell. ( Id. at 19.) The video footage at the 4:20 mark shows plaintiff falling in the exact spot where Lee had wheeled her suitcase into the elevator moments before the accident. (NYSCEF Doc. No. 41 at 4.)
Defendants' summary-judgment papers included a download link for the surveillance video ( see NYSCEF Doc. No. 41 at 2 n 1), and this court has viewed the video footage.
Plaintiff testified at a deposition that she did not recall whether there were any mats or rugs on the lobby floor after the second set of doors. (NYSCEF Doc. No. 45 at 18.) Plaintiff further testified that she noticed that the lobby floor was wet. (NYSCEF Doc. No. 55 at 8.) Plaintiff and Lee each testified that they saw no warning signs or mats in the premises when it was raining. (NYSCEF Doc. Nos. 56 at 2 & 45 at 62.) Lee additionally testified that she did not see any mat in the vestibule, but that she did see a small piece of carpet after the second set of doors. (NYSCEF Doc. No. 46 at 15-16.) Lee testified that after walking through the second set of doors into the lobby area, she saw a small mat or rug on the floor. (NYSCEF Doc. No. 56 at 4.)
Leroy Fraser, an employee of Park Avenue Security for 28 years, was the site supervisor on the day of the incident. (NYSCEF Doc. No. 47 at 9.) Fraser testified that there is always carpet out when it is raining. ( Id. at 19.) To his knowledge, the carpet was out the day of the incident. ( Id. at 27.) He did not recall whether there were mats inside the elevator. ( Id. at 29.) Defendants also provide photographs confirming Mr. Fraser's testimony regarding the extensive carpeting in the lobby (NYSCEF Doc. No. 44). Drew Moschela, Tudor's site manager on the day of the incident, testified that he was not aware of any complaints regarding the accumulation of water on the lobby floor. (NYSCEF Doc. No. 49 at 7, 11.) Shalamar Clarke, the insurance manager for Tudor Realty Services, testified that before the accident no one had complained about water accumulating in the lobby area of the elevator. (NYSCEF Doc. No. 51, ¶ 5.)
DISCUSSION
A party moving for summary judgment under CPLR 3212 must make a prima facie showing that it is entitled to judgment as a matter of law. ( Alvarez v Prospect Hosp , 68 NY2d 320, 324 [1986].) Once a showing has been made, the burden shifts to the parties opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact that require a trial of the action. ( See Zuckerman v City of New York , 49 NY2d 557, 560 [1980].)
To establish liability in a slip-and-fall case, a "plaintiff must prove that defendant either created or had notice of the condition." ( Arnold v New York City Housing Authority , 296 AD2d 355, 355 [1st Dept 2002].) Here, plaintiff is unable to do so.
Defendants have established as a matter of law that they did not create the wet-floor condition. Defendants provide video evidence showing that plaintiff fell in the exact spot where, mere moments before the accident, Kate Lee had been walking and rolling her suitcase. Defendants contend that the water on the floor had been tracked from Lee's feet and suitcase moments before the accident. Plaintiff offers no countervailing evidence. And defendants do not have an "obligation to provide a constant remedy" if water was "tracked into the building by individuals immediately preceding plaintiff." ( Keum Choi v Olympia & York Water St. Co. , 278 AD2d 106, 106—107 [1st Dept 2000].)
Defendants also lacked actual notice of the floor being wet. The evidence demonstrates that defendants were not notified of the alleged wet floors or otherwise had actual notice. (NYSCEF Doc. No. 49 at 16-17.)
Nor did defendants have constructive notice. "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 [1986].) Plaintiff does not provide any evidence to establish how long the floor was wet before the accident. The record does not show that anyone else observed the floor being wet prior to the accident. And Clarke testified that before the accident, no complaints were made about water accumulating in the lobby area or elevator. (NYSCEF Doc. No. 51 at 2.) The absence of any complaints regarding the dangerous condition prior to the accident reinforces that defendants did not have constructive notice. ( See Arnold v New York City Housing Auth. , 296 AD2d 355, 355 [1st Dept 2002].)
Accordingly, it is hereby
ORDERED that defendants Tudor Realty Services Corp and Chinatown Apartments Inc.'s motion for summary judgment under CPLR 3212 is granted and the complaint is dismissed, with costs and disbursements to defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that defendants shall serve a copy of this order with notice of its entry on all parties; on the office of the General Clerk (60 Centre Street, Room 119); and on the office of the County Clerk, which is directed to enter judgment accordingly.