Opinion
711863/15
03-08-2018
Regina ROCHE, Plaintiff, v. The NEW YORK CITY HOUSING AUTHORITY, Defendants.
The following numbered papers read on this motion by defendant pursuant to CPLR 3212 for summary judgment dismissing the complaint or, in the alternative, for an Order pursuant to CPLR 3126(2) dismissing the complaint for failure to appear for an independent physical examination; or in the alternative pursuant to CPLR 3123(2) precluding plaintiff from submitting evidence in support of injuries and damages for failure to appear for an independent medical examination
PAPERS
E–FILE NUMBERED
Notice of Motion–Affidavits–Exhibits 32–44
Answering Affidavits–Exhibits 48–52
Replying Affidavits
Upon the foregoing papers it is ordered that this motion is determined as follows.
This is an action to recover for personal injuries plaintiff allegedly sustained on August 22, 2014 when she allegedly slipped and fell on a wet substance while descending an interior staircase at the premises owned by the defendant and located at 23–03 36th St., Astoria, NY at the Ravenswood Houses owned by the defendant, the New York City Housing Authority (NYCHA).
The NYCHA now moves for summary judgment dismissing the complaint on the grounds that it did not create nor have actual or constructive notice of any wet condition in Staircase A upon which plaintiff allegedly slipped. In support, defendant submitted the affidavit of Dwayne Kirkland, defendant's Supervisor of Caretakers; the daily attendance sheet for August 22, 2014; a copy of the Janitorial Schedule; three work tickets generated as a result of complaints made during the 6 months preceding the plaintiff's accident; Monthly Building Inspection Reports for the two months preceding the plaintiff's accident prepared by Camacho who is also a Supervisor of Caretakers; the deposition testimony of Alissa Cruz, the Caretaker assigned to the subject staircase; plaintiff's General Municipal Law § 50–h hearing testimony and her deposition testimony.
Alissa Cruz, the Caretaker assigned to plaintiff's building, testified as follows. In accordance with the Janitorial Schedule, she mopped the elevators and lobbies every day and the stairwells once a week. She also performed a safety walk-down of the stairways twice daily, once in the morning and once before the end of the work day and would clean up any wet condition, debris or garbage encountered during the walk-down and other conditions such as bulk in the stairway, light or elevator out she reports via her radio to her supervisor. She also testified that she encountered a condition that could be urine in staircases, once a week, however, she does not remember any prior accidents occurring that involved urine or a wet condition. She further testified that although she does not have a specific recollection of August 22, 2014, she would have performed her safety walk downs of the subject stairwell at about 3:30 p.m. on August 22, 2014 as part of her schedule.
In his affidavit Dwayne Kirkland, one of Cruz' supervisors, confirmed Cruz' testimony and the Janitorial Schedule for the Ravenswood Housing which was in effect on August 22, 2014. Kirkland also confirmed that the daily attendance sheet shows that Alissa Cruz was actually present on the day of the plaintiff's accident, that pursuant to the summer schedule which was in place at the time, caretakers worked from 8:00a.m.-3:30p.m. He also stated that NYCHA has a centralized Customer Contact Center that operates 24–hours a day, 7–days a week to receive complaints regarding emergencies and maintenance issues. When a complaint was received a work order was generated on the NYCHA Maximo System and immediately transmitted to and addressed by the regular staff during working hours and by the Emergency Services Division if received after working hours. Kirkland submitted the results of a search of the Maximo System regarding cleaning/spills for Staircase A for the 6 months prior to the plaintiff's accident showing that 3 complaints resulting in3 Work Tickets and that he personally addressed two of the tickets. Finally he asserted that he has no knowledge of any spill present in the subject staircase on August 22, 2014.
The plaintiff testified at a 50–h hearing and at her deposition as follows. She had moved from her 2nd floor apartment to an apartment on the 3rd floor in the days prior to her fall using Staircase A which was closer to her new apartment. On August 22, 2014 at about 2:30p.m. she and her 12 year old daughter were walking down Staircase A from the 3rd floor to the 2nd floor. As she was walking down holding the banister she stepped down on the 6th step of the second set of steps her foot slipped out, she fell and slid down the steps. She stated that she did not actually see the wet condition before or after she fell she just felt "water under [her] sneakers or urine or whatever it was at the time" and her clothes were wet. Her daughter called 911. At the hospital her daughter said her clothes smelled of urine. She further testified that while moving she used Staircase A and frequently noticed garbage, bottles and cigaretts on some steps and cracks and wetness, however, she did not recall seeing any garbage, wetness, bottles or any conditions on the stairs the evening before which was the last time she used Staircase A before her fall. Plaintiff further testified that she did not know how long the wet condition was on the stairs, that she is not aware of any specific complaints to NYCHA prior to her fall, that she made no such complaints and she did not report her accident to NYCHA.
The owner of real property will be held liable for injuries sustained in a slip-and-fall accident when it created or had actual or constructive notice of the alleged dangerous condition and failed to remedy it within a reasonable time (see Gordon v. American Museum of Natural History , 67 NY2d 836, 837—838 [1986] ; Putnam v. Stout , 38 NY2d 607, 612 [1976] ; Dow v. Hermes Realty, LLC , 155 AD3d 824, 825 [2017] ). A defendant who moves for summary judgment in a slip-and-fall case on the grounds of lack of notice, has the initial burden of showing prima facie that it neither create nor had actual or constructive notice of the condition which allegedly caused the fall for a sufficient length of time to discover and remedy it (see Kravets v. New York City Hous. Auth. , 134 AD3d 678 [2015] ; Campbell v. New York City Tr. Auth. , 109 AD3d 455, 456 [2013] ). "To constitute constructive notice "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v. American Museum of Natural History , supra at 837; see Perlongo v. Park City 3 & 4 Apts., Inc. , 31 AD3d 409, 410 [2006] ). A defendant may be charged with constructive notice where there is evidence of a recurring condition that is routinely left unaddressed (see Pfeuffer v. New York City Hous. Auth., 93 AD3d 470, 471–472 [2012] ; Uhlich v. Canada Dry Bottling Co. of NY , 305 AD2d 107[2003] ). A general awareness of a recurring problem is insufficient, without more, to establish constructive notice of the condition causing the fall (see Piacquadio v. Recine Realty Corp ., 84 NY2d 967, 969 [1994] ; Gordon v. American Museum of Natural History , supra). "In order to meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall" (Campbell v. New York City Tr. Auth. , supra at 456; see Levine v. Amverserve Assn., Inc. , 92 AD3d 728 [2012] ; Tsekhanovskaya v. Starrett City, Inc. , 90 AD3d 909, 910 [2011] ). Evidence of general cleaning practices is insufficient to establish a lack of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area in question (see Rong Wen Wu v. Arniotes , 149 AD3d 786, 787 [2017] ; Birnbaum v. New York Racing Assn., Inc. , 57 AD3d 598, 599 [2008] ).
The defendant established, prima facie, that it did not create or have actual or constructive notice of the alleged wet condition on the stairs (see Kravets v. New York City Hous. Auth. , supra; Morales v. New York City Hous. Auth. , 125 AD3d 619 [2015] ; Rodriguez v. New York City Housing Authority , 102 AD3d 407 [2013] ; Pfeuffer v. New York City Hous. Auth., supra). Defendant demonstarted lack of actual notice. Defendant submitted the deposition of Cruz, the Work Tickets showing that only three complaints regarding Staiwell A were received in the 6 months prior to the accident and that they were promptly addressed and the plaintiff's testimony that she never made any complaints of urine or any other conditions in Staiwell A. Defendant also submitted evidence of its particularized and specific inspections and cleaning procedures that were used and in accordance with the summer schedule in effect, the last inspection of Staircase A would have occurred shortly before 3:30 p.m., the end of the workday. This evidence is specific enough to satisfy the defendant's initial burden with respect to lack of constructive notice (see Fernandez v. Festival Fun Parks, LLC , 122 AD3d 794 [2014] ; Armijos v. Vrettos Realty Corp. , 106 AD3d 847 [2013] ; Roy v. City of New York , 65 AD3d 1030, 1031 [2009] ).
Plaintiff does not claim that the defendant created the condition or that it had actual knowledge of the condition. The plaintiff claims the defendant had constructive notice of the condition which was a known recurring condition.
The plaintiff has failed to raise a triable issue of fact as to constructive notice since she did not submit any evidence as to how long the condition existed (see Carlos v. New Rochelle Mun. Hous. Auth. , 262 AD2d 515 [1999] ). The plaintiff testified that she did not see the wetness before or after the accident, but merely felt it under her sneakers. Although plaintiff testified that there was debris and urine in the stairways many times, she also testified that the evening before her accident which was the last time she was in Staircase A, she did not see any urine or debris. The affidavit of the defendant's daughter which merely states that she saw her mother slip and fall and the "urine" on which she slipped, lacks sufficient factual specificity to raise an issue of fact as to how long the condition was present and whether it was visible and apparent. Based upon such evidence, any finding that the condition had been visible and apparent for a sufficent time prior to plaintiff's accident to permit defendant to discover and remedy it would be speculative (see generally Bernstein v. City of New York , 69 NY2d 1020, 1021 [1987] ; see Wellington v. Manmall, LLC , 70 AD3d 401 [2010] ; compare Hill v. Lambert Houses Redevelopment Co. , 105 AD3d 642 [2013] ).
The evidence plaintiff submitted also fails to rise a triable issue as to whether the presence of urine was a recurring dangerous condition routinely left unremedied by defendant, as opposed to a general awareness of such a condition, for which defendant is not liable (see Raposo v. New York City Hous. Auth. , 94 AD3d 533, 534 [2012] ). Even if the presence of urine was a recurring condition, the evidence submitted by the defendant demonstrated that NYCHA did not leave the condition unaddressed. The evidence demonstrates that Cruz inspects Stairwell A twice a day and cleans up any garbage, spills, and wet conditions found at the inspection and that a system to address complaints at other times was in place. In addition, pursuant to the janitorial schedule Staircase A would have been inspected at the end of the normal work day only about 2 hours before the plaintiff's fall . Defendant is not "required to patrol its staircases 24 hours a day" ( Love v. New York City Hous. Auth ., 82 AD3d 588 [2011).
Although plaintiff testified she fell at 2:30p.m., the bill of particulars alleges she fell at 4:00p.m., but the 911 records show the call as being made at 5:30p.m.
Accordingly, the defendant's motion for summary judgment is granted and the complaint is dismissed.
The remainder of the defendant's motion to dismiss the complaint pursuant to CPLR 3126, failure to appear for independent medical examination is denied as moot.