Opinion
20331/2014E
08-13-2020
Luz SEGARRA, Plaintiff, v. 2805 HOLDING LLC, Defendant.
Upon the foregoing papers, the motion of the defendant 2805 Holding LLC, (hereinafter, "2805 Holding") for summary judgment pursuant to CPLR 3212 dismissing the complaint is decided as follows:
Plaintiff Luz Segarra seeks damages for personal injuries allegedly sustained on December 10, 2013, when she allegedly slipped and fell as a result of a wet floor condition in the 6th floor hallway of defendant's residential apartment building located at 2805 Grand Concourse, Bronx, New York. Specifically, plaintiff testified at her deposition that as she left her apartment to take out the trash, she slipped on "dirty water" on the floor of the sixth-floor hallway. Plaintiff alleged that the dirty water came from a leak on the roof. Plaintiff stated that she didn't know how she fell, but guessed that she fell on dirty water because after she fell, she noticed that water "hung" on her clothing. Plaintiff did not testify that she saw water on the floor before or after her alleged fall.
In support of its motion, defendant presented plaintiff's deposition testimony and that of its employee, Sofija Cosovic. Ms. Cosovic testified that she has been the building's superintendent since 2003. She stated that she was not aware of the plaintiff's alleged December 10, 2013 incident before she was called to attend the deposition in 2019. The superintendent's testimony indicated that no complaints of slippery conditions had been received in the leadup to plaintiff's accident. As superintendent, Ms. Cosovic testified that she was responsible for cleaning the subject premises, including the floors. As to her cleaning routine, Ms. Cosovic explained that she swept the floors daily, mopped every Monday morning, and mopped at other times if she saw that the floor was dirty. Ms. Cosovic further testified that, during her time as superintendent, the subject premises never had issues with the roof, and never had a leaking roof. Ms. Cosovic was not aware of water leaking on the floor of the sixth floor hallway at any point during her tenure as superintendent. Ms. Cosovic stated that she never had to clean up, nor had she received complaints about a water condition in the sixth-floor hallway.
Although defendant disputes the facts as alleged by plaintiff, even accepting plaintiff's version of the circumstances, defendant maintains that it is still not liable to plaintiff for her accident. The defendant contends that it did not create or have actual or constructive notice of the leaking roof that purportedly caused the plaintiff's accident. As such, defendant asserts that it is not liable to plaintiff for such an accident.
In opposition, plaintiff asserts, both at her examination and in her affidavit, that she made numerous complaints to the superintendent and defendant's office about issues with water leaking through the roof long before the accident on December 10, 2013. Additionally, on the date in question, plaintiff stated that as she left her apartment to take the elevator, she slipped and fell on dirty water which she contends came from a leak on the roof and the wall of the building. Plaintiff further contends that despite complaining about the leaking roof, Defendant never fixed the problem. Plaintiff also relies on the deposition testimony of Ms. Cosovic, the building superintendent at the time of the accident. Ms. Cosovic while admitting that it was her sole responsibility for the cleaning and mopping of the common areas, testified that she could not recall when she last inspected the property or whether it had been inspected at all before plaintiff's fall in 2013. Instead, she testified only to general practices, such as sweeping daily and mopping weekly, the floors in the 6th floor hallway.
The court's function on this motion for summary judgment is issue finding rather than issue determination. ( Sillman v. Twentieth Century Fox Film Corp. , 3 NY2d 395 [1957] ). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." ( Alvarez v. Prospect Hosp. , 68 NY2d 320, 324, 501 N.E.2d 572, 574, 508 N.Y.S.2d 923, 925-926 [1986] [citations omitted].)
Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. ( Rotuba Extruders v. Ceppos , 46 NY2d 223 [1978].) The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party. ( Jacobsen v. New York City Health & Hosps. Corp. , 22 NY3d 824 [2014].)
A landowner is under a duty to maintain its property in a reasonably safe condition under the existing circumstances, including the likelihood of injury to third parties, the potential that any such injury would be of a serious nature and the burden of avoiding the risk. In order to recover damages, a party must establish that the owner created or had actual or constructive notice of the hazardous condition which precipitated the injury. ( Piacquadio v Recine Realty Corp. , 84 NY2d 967, 969, 646 NE2d 795, 622 NYS2d 493 [1994].) "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 , 67 NY2d 836, 837, 492 N.E.2d 774, 501 N.Y.S.2d 646 [1986] ).
"A defendant who moves for summary judgment in a slip-and-fall action has the initial burden of making a prima facie demonstration that it neither created the hazardous condition, nor had actual or constructive notice of its existence" ( Smith v Costco Wholesale Corp. , 50 AD3d 499, 500, 856 N.Y.S.2d 573 [1st Dept 2008] ). "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." ( Mei Xiao Guo v. Quong Big Realty Corp. , 81 AD3d 610, 611, 916 N.Y.S.2d 155 [2d Dept. 2011] [citations omitted]; Quintana v. TCR, Tennis Club of Riverdale, Inc. , 118 AD3d 455, 987 N.Y.S.2d 68 [1st Dept. 2014] [defendant failed to establish a lack of constructive notice of the wet condition on steps where the moving papers contained no indication of when the area was last inspected prior to the accident]; Qevani v 1957 Bronxdale Corp. , 232 AD2d 284, 649 NYS2d 11 [1st Dept. 1996] [issue of fact as to whether existence of condition on steps for 90 minutes constituted constructive notice].)
Defendant's burden to establish a lack of constructive notice may be met by testimony of regular maintenance. ( Raposo v. New York City Hous. Auth. , 94 AD3d 533, 942 N.Y.S.2d 337 [1st Dept. 2012] [burden shifted when defendant's caretaker testified that he followed the janitorial schedule pursuant to which he would have inspected all the staircases in the morning and afternoon, mopped the stairs any time he encountered a wet condition, replaced any light bulbs that were not functioning, and reported the condition to his supervisor]; Raghu v. New York City Hous. Auth. , 72 AD3d 480, 897 N.Y.S.2d 436 [1st Dept. 2010] [janitor's testimony that his regular routine included cleaning the stairwell between 8:00 A.M. and 8:30 A.M., and that he did not observe any powder, was sufficient to shift the burden to plaintiff of demonstrating the existence of questions of fact] ).
To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell (see Porco v Marshalls Dept. Stores , 30 AD3d 284, 285 [2006]. However, vague testimony as to general cleaning practices lacking specific details is generally not enough to establish an entitlement to judgment in the movant's favor ( Birnbaum v. New York Racing Ass'n, Inc. , 57 AD3d 598, 598-99, 869 N.Y.S.2d 222 [2d Dept. 2008] [defendant failed to meet its burden on the issue of lack of constructive notice where it offered evidence of "general daily cleaning practices," but failed to offer "evidence as to when the area in question as last cleaned and inspected relative to the time when the plaintiff fell," including any "evidence regarding any particularized or specific inspection or stair-cleaning procedure in the area of the plaintiff's fall on the date of the accident."] )
In this action, the defendant failed to satisfy its initial burden. The deposition testimony of the defendant's superintendent merely referred to the building's general daily cleaning practices. The superintendent tendered no evidence regarding any particularized or specific inspection or floor cleaning procedure in the area of the plaintiff's fall on the date of the accident.
A defendant in a slip-and-fall case may also establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall without engaging in speculation (see Rodriguez v New York City Hous. Auth. , 169 AD3d 947, 948-949 [2nd Dept 2019] ). The defendant failed to establish its prima facie entitlement to judgment as a matter of law based upon this ground. The plaintiff testified at her deposition that, although she did not notice anything on the floor prior to her fall, after she fell onto the floor, she noticed water on her clothing. Contrary to the defendant's contention, this testimony does not establish that the cause of the plaintiff's fall cannot be identified without engaging in speculation (see Matadin v Bank of Am. Corp. , 163 AD3d 799, 800 [ 2nd Dept 2018] ). Thus, even assuming the defendant had made a prima facie showing, the plaintiff raised a triable issue of fact in opposition.
Accordingly, it is hereby,
ORDERED that Motion Sequence No. 5 for summary judgment is denied.
This is the Decision and Order of the Court.