Opinion
2012-12-13
Eloise CARTER, Plaintiff–Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Respondent.
Belovin & Franzblau, LLP, Bronx (David A. Karlin of counsel), for appellant. Lester Schwab Katz & Dwyer, LLP, New York (Steven B. Prystowsky of counsel), for respondent.
Belovin & Franzblau, LLP, Bronx (David A. Karlin of counsel), for appellant. Lester Schwab Katz & Dwyer, LLP, New York (Steven B. Prystowsky of counsel), for respondent.
TOM, J.P., SWEENY, MOSKOWITZ, RENWICK, CLARK, JJ.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered July 18, 2011, which, in this personal injury action resulting from a slip and fall on a floor in defendant's building, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant made a prima facie showing that it did not create or have notice of the dangerous condition that allegedly caused plaintiff's injuries ( Pfeuffer v. New York City Hous. Auth., 93 A.D.3d 470, 471, 940 N.Y.S.2d 566 [1st Dept.2012];Love v. New York City Hous. Auth., 82 A.D.3d 588, 919 N.Y.S.2d 149 [1st Dept.2011] ).
In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's neighbor's affidavit stating that the accident location “was constantly and frequently littered with garbage, debris, water and other liquids,” and plaintiff's deposition testimony that she saw water at the accident location two days before she fell, were insufficient to raise an issue of fact as to constructive notice. Indeed, these statements should not be considered, as they were tailored to avoid the consequences of plaintiff's earlier 50–h testimony that she did not see water at the accident location before her accident ( see Smith v. Costco Wholesale Corp., 50 A.D.3d 499, 501, 856 N.Y.S.2d 573 [1st Dept.2008];Perez v. Bronx Park S. Assoc., 285 A.D.2d 402, 404, 728 N.Y.S.2d 33 [1st Dept.2001],lv. denied97 N.Y.2d 610, 740 N.Y.S.2d 694, 767 N.E.2d 151 [2002] ). Even if the statements are considered, they merely show that defendant had a “general awareness” of a dangerous condition, for which defendant is not liable ( Love, 82 A.D.3d at 588, 919 N.Y.S.2d 149). Indeed, there is no evidence that defendant had actual or constructive notice of the specific condition that allegedly caused plaintiff's injuries—namely, a leaking picnic cooler.
We have considered plaintiff's remaining arguments and find them unavailing.