Opinion
2015-05-19
Yvette HAWTHORNE–KING, Plaintiff–Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Respondent.
Burns & Harris, New York (Blake G. Goldfarb of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondent.
Burns & Harris, New York (Blake G. Goldfarb of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondent.
MAZZARELLI, J.P., ACOSTA, SAXE, MANZANET–DANIELS, CLARK, JJ.
Order, Supreme Court, New York County (Ellen M. Coin, J.), entered on or about February 20, 2014, which granted defendant New York City Housing Authority's (NYCHA) motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
Plaintiff alleges that she slipped and fell on exterior steps of a building owned by defendant NYCHA, when she used her foot to swipe aside a potato chip bag on one step, and then slipped on an oily substance underneath the bag.
NYCHA failed to meet its prima facie burden to show that its employees did not have constructive notice of the alleged condition. NYCHA's witness, the supervisor of caretakers, testified only as to a general cleaning routine, which did not indicate when the exterior stairs had last been cleaned or inspected prior to the accident. The caretaker who would have inspected and cleaned the building on the day of the accident did not testify or submit an affidavit ( see Rodriguez v. Board of Educ. of the City of N.Y., 107 A.D.3d 651, 651–652, 969 N.Y.S.2d 25 [1st Dept.2013]; Rodriguez v. Bronx Zoo Rest., Inc., 110 A.D.3d 412, 412, 972 N.Y.S.2d 31 [1st Dept.2013]; Guerrero v. Duane Reade, Inc., 112 A.D.3d 496, 976 N.Y.S.2d 385 [1st Dept.2013] ). The documentary evidence submitted by NYCHA also did not establish the agency's lack of constructive notice of the alleged defect, because those records only indicated that a caretaker went up the stairs and that caretakers were working “on steps—‘A’ side” about an hour and a half after plaintiff's accident, and there is no evidence that the entries referred to the accident location itself ( see Matias v. Rebecca's Bakery Corp., 44 A.D.3d 429, 843 N.Y.S.2d 263 [1st Dept.2007] ).
Assuming that NYCHA met its burden of demonstrating that its employees did not create the wet or greasy condition on the steps, plaintiff raised an issue of fact through her testimony and the affidavit of her daughter, who both stated that they had seen NYCHA employees pouring liquid from buckets down the subject stairs after cleaning the building's interior on previous occasions. Further, plaintiff's daughter averred that she was with plaintiff when she fell, and saw that the stairs were wet and that the liquid on the stairs had the same consistency and smell as the liquid that the building's porters used to clean the interior stairs. This is sufficient to raise an issue of fact as to whether NYCHA's employees caused and created the greasy condition ( see Grossman v. Amalgamated Hous. Corp., 298 A.D.2d 224, 226, 750 N.Y.S.2d 1 [1st Dept.2002] ).
Contrary to NYCHA's contention, plaintiff's testimony does not establish that her conduct is the sole proximate cause of the accident. To the extent that plaintiff may have contributed to the accident by swiping the potato chip bag with her foot, rather than walking around it, the issues of contributory negligence and proximate cause are questions of fact for the jury to decide ( see Permuy v. City of New York, 156 A.D.2d 174, 176–177, 548 N.Y.S.2d 219 [1st Dept.1989] ).