Owens v Cooper Sq. Realty

Owens v Cooper Sq. Realty 2012 NY Slip Op 00291 Decided on January 19, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 19, 2012
Tom, J.P., Moskowitz, Richter, Abdus-Salaam, Román, JJ.
6249 106907/08

[*1]Jane Owens, Plaintiff-Respondent,

v

Cooper Square Realty, Defendant-Appellant, Classic Realty, Defendant.




Margaret G. Klein & Associates, New York (Eugene Guarneri
of counsel), for appellant.
Edward T. Chase, Mt. Vernon, for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 28, 2011, which, in this action to recover for personal injuries sustained when plaintiff allegedly slipped and fell on a floor in a building managed by defendant Cooper Square Realty (Cooper Square), denied Cooper Square's motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed as against Cooper Square. The Clerk is directed to enter judgment accordingly.

Defendant made a prima facie showing that it did not create or have notice of the alleged slippery condition of the floor (see Katz v New York Hosp., 170 AD2d 345 [1991]). Indeed, defendant's porter testified that he swept and mopped the area three times a week, including on the morning of the accident, and waited for the floor to dry before proceeding to another floor. Defendant's handyman testified that he inspected the area immediately after the accident and found that it was dry. Both the porter and handyman testified that there had been no complaints concerning the area before the accident.

Plaintiff, however, failed to raise a triable issue of fact. She testified that the floor was shiny, slippery, and overwaxed or overbuffed. Yet, in opposition to the summary judgment motion, plaintiff relies on her expert's affidavit that states the accident was caused by a soapy water residue on the floor, left after the porters' mopping. The expert's opinion contradicts plaintiff's testimony regarding the condition of the floor at the time of her accident. Moreover, [*2]the affidavit is speculative (DeLeon v New York City Hous. Auth., 65 AD3d 930 [2009]; Bean v Ruppert Towers Hous. Co., 274 AD2d 305, 307-08 [2000]; Lindeman v Vecchione Constr. Corp., 275 AD2d 392 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 19, 2012

CLERK