Opinion
10507 Index 21715/14E
12-05-2019
David SUAREZ, Plaintiff–Appellant, v. JESUP REALTY GROUP, LLC, Defendant–Respondent.
Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), for appellant. O'Toole Scrivo, LLC, New York (Robert W. Gifford of counsel), for respondent.
Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), for appellant.
O'Toole Scrivo, LLC, New York (Robert W. Gifford of counsel), for respondent.
Richter, J.P., Gische, Webber, Gesmer, JJ.
Judgment, Supreme Court, Bronx County (Robert T. Johnson, J.), entered June 26, 2018, dismissing the complaint pursuant to an order, same court and Justice, entered October 19, 2017, which granted defendant's motion for summary judgment, unanimously affirmed, without costs.
Defendant established prima facie entitlement to judgment as a matter of law in this action where plaintiff alleges that he was injured when he slipped and fell while descending the stairs in defendant's building.
Defendant submitted evidence, including the building superintendent's testimony, showing that it did not create the wet condition on the stairway, or have actual or constructive notice of the condition. In opposition, plaintiff failed to raise a triable issue of fact (see Rivera v. 2160 Realty Co., L.L.C., 4 N.Y.3d 837, 797 N.Y.S.2d 369, 830 N.E.2d 267 [2005] ; Pagan v. New York City Hous. Auth., 121 A.D.3d 622, 996 N.Y.S.2d 10 [1st Dept. 2014] ).
There is no evidence of when the spill occurred, and plaintiff's own testimony demonstrates that the spill was not present about three hours earlier, after the superintendent had already ceased working for the day (see Betances v. 185–189 Audubon Realty, LLC, 139 A.D.3d 404, 405, 29 N.Y.S.3d 162 [1st Dept. 2016] ).