Cajuste v 543 Realty L.L.C.

[*1] Cajuste v 543 Realty L.L.C. 2009 NY Slip Op 52367(U) [25 Misc 3d 1231(A)] Decided on November 12, 2009 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 12, 2009
Supreme Court, Kings County

Augustin H. Cajuste and MATHILDE CAJUSTE, Plaintiffs,

against

543 Realty L.L.C., Defendant.



25730/07



For Plaintiff:

Kliopatra Vrontos

Rubenstein & Rynecki

16 Court Street

Brooklyn, NY 11241

For Defendant:

Christopher Kolb

12 Metrotech Center 28th floor

Brooklyn, NY 11201

Francois A. Rivera, J.

By notice of motion filed on April 7, 2009, under motion sequence number two, defendant 543 REALTY L.L.C. seeks an order pursuant to CPLR §3212 granting summary judgment in its favor on liability and dismissing the complaint. Plaintiffs Augustin H. Cajuste and Mathilde Cajuste oppose the motions.

BACKGROUND

On July 13, 2007, plaintiffs commenced the instant action by filing a summons and complaint with the Kings County Clerk's office. By answer dated October 2, 2007, defendant's joined issue. On February 2, 2009, plaintiffs filed a note of issue. Plaintiffs complaint and bill of particulars alleges the following facts. On or before June 12, 2007, defendant negligently caused a sticky substance to remain on the interior staircase creating an unsafe condition at a premise located at 543 East 21 street, Brooklyn, New York (subject premise). At approximately 5:30 pm, that day, Augustin H. Cajuste, slipped and fell due to the dangerous condition while walking down the interior staircase from his apartment on the second floor to the first floor of the subject premise and seriously injured himself. Mathilde Cajuste brings a derivative claim for the loss of her husband's services [*2]and consortium due to his injuries.

MOTION PAPERS

Defendant's motion papers consists of an affirmation of counsel, and five annexed exhibits labeled A through E. Exhibit A is plaintiffs' summons and complaint and the defendant's verified answer and disclosure demands. Exhibit B is plaintiffs' verified bill of particulars in response to defendant's demand. Exhibit C is the note of issue filed by the plaintiffs on February 2, 2009. Exhibit D is the transcript of plaintiff Augustin H. Cajuste's deposition conducted on February 6, 2008. Exhibit E is the certified and unsigned deposition transcript of Nyron Chance, the superintendent of the subject premise, conducted on October 30, 2008.

Plaintiffs' oppose the motion with an affirmation of their counsel and an affidavit of Augustin H. Cajuste. Defendant replies to plaintiff's opposition with an affirmation of counsel.

LAW AND APPLICATIONOn a motion for summary judgment, the movant must establish his or her cause of action or defense sufficient to warrant a court to direct judgment in his or her favor as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). If the movant meets this burden, the party opposing the motion must then produce proof in admissible form sufficient to necessitate a trial as to material issues of fact (Laecca v. New York University, 7 AD3d 415 [1st Dept., 2004]). Furthermore, to grant a motion for summary judgment, it must clearly appear that no material issue of fact is presented. The burden upon the court when deciding this type of motion is not to resolve issues of fact or credibility, but rather to determine whether indeed any such issue of fact exist (Barr v. County of Albany, 50 NY2d [1960]).

"[L]iability for a dangerous or defective condition on [real] property is generally predicated upon ownership, occupancy, control or special use of the property ... Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property" (Usman v. Alexander's Rego Shopping Center, Inc., 11 AD3d 450 [2nd Dept., 2004]).

"To impose liability upon a defendant in a slip-and-fall action, there must be evidence that a dangerous or defective condition existed, and that the defendant either created the condition or had actual or constructive notice of it" (Starling v. Suffolk County Water Authority, 63 AD3d 822 [2nd Dept., 2009]).

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the alleged hazardous condition, nor had actual or constructive notice of its existence for a length of time sufficient to discover and remedy it; to sustain that burden, the defendant must offer some evidence as to when the area in question was last inspected relative to the accident (Arzola v. Boston Properties Ltd. Partnership, 63 AD3d 655 [2nd Dept., 2009]). [*3]

On motion for summary judgment to dismiss complaint in trip and fall action based upon lack of notice, defendant is required to make prima facie showing affirmatively establishing absence of notice as matter of law; this burden cannot be satisfied merely by pointing out gaps in the plaintiff's case ( Baines v. G & D Ventures, Inc., 64 AD3d 528 [2nd Dept., 2009]).

Defendant offers two arguments in support of its application for summary judgment in its favor on liability. The first is that plaintiff cannot establish that the defendant had notice of the allegedly dangerous condition inside the stairwell. The second is that the defendant did not create the condition that caused the accident. The defendant offered the testimony of Nyron Chance, the superintendent of the subject premise pertaining to his custom and practice in cleaning sweeping and moping the interior stairwells. While evidence of habit or custom and practice may be admitted to establish that a person performed a certain act, the person must establish the habit or custom and practice is "... a deliberate and repetitive practice" by a person "in complete control of the circumstances." as opposed to "conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstance."(Rivera v. Anilesh, 8 NY3d 627 [2007] citing Halloran v. Virginia Chems, 41 NY2d 386, 391 [1977]). Although, the superintendent testified that he mopped the stairwell regularly, he did not offer any testimony regarding the condition of that part of the stairwell in which Augustin H. Cajuste slipped at anytime prior to the accident. Furthermore, it is not plaintiff's burden in opposing the motion for summary judgment to demonstrate, as defendants urge, that the defendants had actual or constructive notice of the unsafe condition. Rather, it is the responsibility of defendant to establish the absence of notice as a matter of law (see Oriol v. Apex Technical Schools, Inc., 15 Misc 3d 1141(A) [NY Sup. 2007]). The defendant has therefore failed to establish that it had no constructive notice of the dangerous condition before the accident. (Arzola v. Boston Properties Ltd. Partnership, 63 AD3d 655 [2nd Dept., 2009]).

Moving to the second point, the defendant alleges that it did not cause or create the condition which caused the accident. In support of this contention, defendant relies on the plaintiff's deposition testimony. Plaintiff testified at his deposition that he saw, Janet Lee, another tenant, cleaning the stairs and lobby immediately after he fell. Plaintiff did not describe what cleansing substances the tenant was using, nor did he state that he saw the tenant place any substances on the section of the stairwell where he slipped and fell. Rather, plaintiff expresses his belief that the sticky substance he slipped on was a probably a cleansing substance being used by this tenant. While this is not an unreasonable belief, it certainly is not direct evidence on this issue nor does it establish as a matter of law that the tenant caused or created the sticky substance condition. The other tenant may or may not be the cause. Defendant did not meet its burden of establishing that it did not cause or create the condition by relying on plaintiff's belief. The defendant did not present any evidence that it did not create the condition. Indeed, the superintendent testified that he did mop the stairways on a regular basis. [*4]

Defendant's motion for summary judgment on liability in it favor is denied.

The foregoing constitutes the decision and order of this court.

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J.S.C.