Opinion
2003-03419.
Decided March 15, 2004.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated March 7, 2003, which denied its motion for summary judgment dismissing the complaint.
Wallace D. Gossett (Steven S. Efron, P.C., New York, N.Y. [Anita Isola and Renée L. Cyr] of counsel), for appellant.
Scott Schweber, P.C., New York, N.Y., for respondent.
Before: SONDRA MILLER, J.P., DANIEL F. LUCIANO, THOMAS A. ADAMS SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The plaintiff slipped on an object she described as a chips' bag or snack bag and fell down the stairs of a subway station. She did not see the bag prior to her fall. The plaintiff commenced this action against the New York City Transit Authority (hereinafter the TA) alleging, inter alia, that it negligently permitted the stairway to remain in a debris-ridden, dangerous condition.
The TA met its initial burden of establishing its entitlement to summary judgment by demonstrating that it neither created nor had actual or constructive notice of the alleged dangerous condition on the stairway ( see Gordon v. American Museum of Natural History, 67 N.Y.2d 836; Cooper v. Town of Huntington, 304 A.D.2d 785). Any finding that the debris had been on the stairway for a sufficient length of time prior to the accident to permit the TA's employees to discover and remedy it would be mere speculation ( see Gordon v. American Museum of Natural History, supra; Rojas v. Supermarkets Gen. Corp., 238 A.D.2d 393; Young v. Whitman Deli, 214 A.D.2d 560).
In opposition, the plaintiff failed to raise a triable issue of fact as to the TA's negligence. The conclusory affidavit of a nonparty-witness regarding her observation of debris on the stairway on previous occasions was insufficient to raise a triable issue of fact as to whether the TA had notice of a recurring condition ( see Grottano v. City of New York, 304 A.D.2d 713; Stone v. Long Is. Jewish Med. Ctr., 302 A.D.2d 376; Carlos v. New Rochelle Mun. Hous. Auth., 262 A.D.2d 515; see also Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967).
The plaintiff's contention regarding the admissibility of the documents relied upon by the TA is unpreserved for appellate review as it was raised for the first time on appeal ( see Zafonte v. Steinhammer, 277 A.D.2d 450; Fleet Bank v. Powerhouse Trading Corp., 267 A.D.2d 276).
S. MILLER, J.P., LUCIANO, ADAMS and TOWNES, JJ., concur.