at she saw spillage anywhere on the stairwell either immediately before or immediately after her accident, nor was any other substantial evidence of the existence of such a condition presented in opposition to the motion ( cf. Sweeney v. DJ Vending, 291 A.D.2d 443 [area of accident was seen being mopped after accident]; Welch v. Riverbay Corp., 273 A.D.2d 66 [evidence was presented that "stairwell was icy or wet," which defendants did not directly dispute]; Ramos v. New York City Hous. Auth., 249 A.D.2d 59 [defendant did not except to recurring condition charge]; O'Connor-Miele v. Barhite Holzinger, 234 A.D.2d 106, 107 [plaintiff testified to "accumulation of debris" on stairwell, "particularly of soap powder"]; Vitanza v. Growth Realties, 91 A.D.2d 917 [in wrongful death action, evidence was presented that stairway "was seriously and pervasively defective"]; Kelsey v. Port Auth., 52 A.D.2d 801 [plaintiff "testified that she saw cigarette butts, paper cups and wetness" on stairway]; Gramm v. State, 28 A.D.2d 787, affd 21 N.Y.2d 1025 [claimant and other witnesses testified that steps "were worn, wet, dirty and littered"]). The sole basis this plaintiff offers for the inference that a dangerous condition existed on the stairwell at the relevant time is her testimony that her sleeve (not any part of the stairwell itself) was wet at the right elbow at the end of her fall. Evidence of wetness on plaintiff's sleeve — wetness that could be ascribed to causes other than contact with spillage on the stairwell — simply does not, in isolation, suffice to support a reasonable inference that "the injury was sustained wholly or in part by a cause for which the defendant was responsible" ( Bernstein v. City of New York, 69 N.Y.2d 1020, 1022, quoting Digelormo v. Weil, 260 N.Y. 192, 200). Stated otherwise, plaintiff offers nothing more than "speculation and guesswork" ( Bernstein, 69 N.Y.2d at 1021) to support her contention that the alleged recurring condition existed on the stairwell at the time of her ac
If, for example, a plaintiff were to prove that a defendant landowner negligently allowed the floor of his premises to become dangerous as the result of an accumulation, over the course of several days, of hundreds of cigarette butts, it would be illogical to hold that the plaintiff's case must be dismissed, simply because of a failure to prove that the one particular cigarette butt which caused the accident had been on the floor for a long enough period of time to warrant a finding of constructive notice of its existence. Such a rule would not only be contrary to logic and common sense, it would also be contrary to express statements made by the courts in Gramm v. State of New York ( 28 A.D.2d 787, affd 21 N.Y.2d 1025, on majority opn at App. Div.) and Kelsey v. Port Auth. ( 52 A.D.2d 801), cases which were not overruled in Gordon.
As noted above, however, plaintiff testified that her accident was caused by the candy wrappers on the staircase, and the testimony appears to indicate that she observed 20 to 30 wrappers on the stairs the night before she slipped and fell (Plaintiff 5/30/06 EBT, at 84). While plaintiff could not identify any specific wrapper that she slipped on, she provided a description of the wrappers and a sufficient nexus between the condition of the staircase and the circumstances of her fall to establish causation ( see id.; see also Zanki v Cahill, 2 AD3d 197, 198-200 [1st Dept 2003], affd 2 NY3d 783; Kelsey v Port Auth. of N.Y. N.J., 52 AD2d 801 [1st Dept 1976]; Gramm v State of New York, 28 AD2d 787, 788 [3rd Dept 1967], affd 21 NY2d 1025). "Circumstantial evidence or common knowledge may provide a basis from which the causal sequence may be inferred" ( Gramm, 28 AD2d at 788 [internal quotation marks and citation omitted]).
The plaintiff is not required to produce direct evidence in order to prove proximate cause "to a mathematical certainty." Hurley v. Marriott Corp., supra, 1995 WL 694614, at *4 (citing Gramm v. State, 28 A.D.2d 787, 281 N.Y.S.2d 235, 237 (3rd Dept. 1967), aff'd, 21 N.Y.2d 1025, 291 N.Y.S.2d 7, 238 N.E.2d 498 (1968)). Rather, "[c]ircumstantial evidence or common knowledge may provide a basis from which the causal sequence may be inferred."
New York courts do not require proof of "the precise condition of the particular step upon which [plaintiff] fell." Gramm v. New York, 28 A.D.2d 787, 281 N.Y.S.2d 235, 237 (3d Dep't 1967), aff'd, 21 N.Y.2d 1025, 291 N.Y.S.2d 7, 238 N.E.2d 498 (1968). Rather, proximate cause is a matter of ordinary experience, and "[c]ircumstantial evidence or common knowledge may provide a basis from which the causal sequence may be inferred."
New York's Court of Appeals believed it to be so, citing two separate cases where no proof of proximate cause had been presented and yet the question of its existence was given to the jury. The court reasoned that " a fall was a natural and probable consequence of the conditions present [i.e. litter, wetness and wear] on the stairs," and therefore a prima facie case had been presented.Gordon, 67 N.Y.2d at 838, 492 N.E.2d at 775, 501 N.Y.S.2d at 647 referencingKelsey v. Port Auth., 52 A.D.2d 801, 383 N.Y.S.2d 347 (1st Dep't.1975), Gramm v. State of New York, 28 A.D.2d 787, 281 N.Y.S.2d 235 (3d Dep't.1967), aff'd 21 N.Y.2d 1025, 238 N.E.2d 498, 291 N.Y.S.2d 7 (1968). The wetness of the sidewalk would, of course, be another factor to consider.
Nor did he describe the paper as being dirty or worn, which would have provided some indication that it had been present for some period of time (cf. Negri v Stop Shop, supra, at p 626 [broken baby food jars were dirty]). Thus, on the evidence presented, the piece of paper that caused plaintiff's fall could have been deposited there only minutes or seconds before the accident and any other conclusion would be pure speculation. Contrary to plaintiff's contentions, neither a general awareness that litter or some other dangerous condition may be present (see, Bogart v Woolworth Co., 24 N.Y.2d 936, revg 31 A.D.2d 685) nor the fact that plaintiff observed other papers on another portion of the steps approximately 10 minutes before his fall is legally sufficient to charge defendant with constructive notice of the paper he fell on. Gramm v State of New York ( 28 A.D.2d 787, affd on majority opn below 21 N.Y.2d 1025) and Kelsey v Port Auth. ( 52 A.D.2d 801) are not to the contrary. In both cases constructive notice was established by other evidence and the issue was whether plaintiffs had presented sufficient evidence on the issue of causation insofar as both plaintiffs failed to specify which step they had fallen on and what condition — wear, wetness or litter — had caused them to slip.
This expert evidence submitted by plaintiffs raised a triable issue of fact as to whether the tread of the stairs complied with the pertinent regulations of the building code. Moreover, the injured plaintiffs testimony that she slipped on the top step of the subject stairway, coupled with her expert's testimony of the slippery condition of such steps due to worn-off treads, provided sufficient circumstantial evidence to raise an issue of fact as to whether her fall was caused by the allegedly defective condition ( see Garcia v NewYork City Tr. Auth., 269 AD2d 142; Gramm v State of New York, 28 AD2d 787, affd 21 NY2d 1025). Freedman, J., dissents in a memorandum as follows: I concur with the majority that the owner is entitled to summary judgment as an out-of-possession landlord.
Defendant failed to satisfy its prima facie burden of establishing the absence of issues of fact concerning the injured plaintiff's inability to identify the cause of her fall and whether it created or had actual or constructive notice of the hazardous condition that caused the fall ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Fernandez v VLA Realty, LLC, 45 AD3d 391; Pena v Women's Outreach Network, Inc., 35 AD3d 104, 109). We reject defendant's contention that plaintiff was required to identify at the time of the accident exactly where she fell and the precise condition that caused her to fall ( see Welch v Riverbay Corp., 273 AD2d 66; Vitanza v Growth Realties, 91 AD2d 917; Gramm v State of New York, 28 AD2d 787, 788, affd 21 NY2d 1025). Plaintiff identified the location of her fall in her deposition testimony and stated that she pointed this location out to an employee of defendant when he found her at the bottom of the stairs. Although she did not know at the time that she slipped on the steps because of the worn treads, she discovered this when she returned to the scene a few weeks later ( see Seivert v Kingpin Enters., Inc., 55 AD3d 1406; Sweeney v D J Vending, 291 AD2d 443). Based on the testimony of two employees of defendant that the photographs taken two to three months after the accident accurately represented the condition of the treads on the steps before and on the day of the accident, there is no reason to believe that the condition of the treads changed significantly between the date of the accident and the date of plaintiffs return to the scene.
rt, an architect, stating that he visited the building in question and observed that the existing stair was "steel with a matte black non-slip finish that is applied to it as required by the New York City Building Code," but the "non-slip finish on the nosing of each tread and top platform is severely worn off," thereby "creating an extremely slippery condition at the edge nosing of the top platform and at each stair tread." This expert evidence submitted by plaintiffs raised a triable issue of fact as to whether the tread of the stairs complied with the pertinent regulations of the Building Code. Moreover, the injured plaintiffs testimony that she slipped on the top step of the subject stairway, coupled with her expert's testimony of the slippery condition of such steps due to wornoff treads, provided sufficient circumstantial evidence to raise an issue of fact as to whether her fall was caused by the allegedly defective condition ( see Garcia v New York City Tr. Auth., 269 AD2d 142; Gramm v State of New York, 28 AD2d 787, affd 21 NY2d 1025). Freedman, J., dissents in a memorandum as follows: