Santello v City of New York

[*1] Santello v City of New York 2009 NY Slip Op 52562(U) [25 Misc 3d 1243(A)] Decided on November 16, 2009 Supreme Court, Richmond County Aliotta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2009
Supreme Court, Richmond County

Joseph Santello and GEORGEANNE SANTELLO, Plaintiffs,

against

The City of New York, THE NEW YORK CITY BOARD OF EDUCATION and P.S. 58, Defendants.



102753/07

Thomas P. Aliotta, J.

In this personal injury action, it is alleged that on September 14, 2006 at approximately 8:35 a.m., plaintiff Joseph Santello (hereinafter "plaintiff") was injured when he slipped on puddling water on the floor near the entrance to his office at Public School 58 in Staten Island, New York, where he was employed as principal. It is undisputed that on the morning of the accident, it had been raining heavily. Plaintiff claims that the wetness that he slipped on was the result of water being tracked into the lobby and corridor near his office by the students entering the building.

In moving for summary judgment and dismissal of the complaint pursuant to CPLR 3211(a)(7), defendants maintain that there is no evidence that they had either actual or constructive notice of the existence of the alleged wet and hazardous condition of the floor, and therefore cannot be held liable. Moreover, movants argue that the standard of care applicable to this case is that set forth, e.g., in Rogers v Rockefeller Group Intl., Inc. (38 AD3d 747, 749), i.e., that defendants have "no obligation to provide a constant remedy to the problem of water being tracked into [a building's lobby and corridor] in rainy weather" (id. [internal quotation marks and citations omitted]).

In support, defendants rely on the injured plaintiff's testimony at his 50-h hearing, where he testified that on the morning of his accident, while exiting his office at 8:00 a.m., he did not observe any water on the floor in the adjoining corridor, but observed some water on the floor of the lobby where a warning sign had been posted and "a cleaner...part of the custodial staff...[was] dry mopping it." Plaintiff further testified that at 8:30 a.m. when he returned to his office, which was situated "off the main lobby [by] ...[a]pproximately ten feet," he observed a "significant [amount of] water" on the lobby floor as he passed through it. Again, a custodian was observed "dry mopping" the area and the warning sign was still evident. Also of significance is plaintiff's testimony "referring to [rainy] morning[s] when the building is beginning to experience a lot of traffic", that the custodian is expected to focus his "attention right at that point [i.e., the lobby]...and [once] everyone is basically out of the lobby, [to] begin to work[ing] their way up" the corridor. In this regard, he went on to explain that it was the school's "standard operating procedures that someone be... [in the lobby], stationary, mopping as needed, throughout the arrival process." Defendants also cite plaintiff's testimony to the effect that eight to ten classes proceed through the lobby past his office when they report to their classrooms at [*2]8:15 a.m.

In further support, defendants rely upon the deposition testimony of Stephanie Prendergast, a teacher who witnessed plaintiff's accident, and Kevin Banseck, the school's stationary fireman, who was there to perform the custodial duties on the day in question. Ms. Prendergast testified that she observed "smudges of kids foot prints" in the area where plaintiff slipped, while Mr. Banseck testified that his routine practice on rainy days was to dry mop the stairs and wet vac "back and forth in the lobby and corridor", which included the area outside the principal's office. According to this witness, on such days he would be stationed "by stairway E in the main lobby...with the machine", where his normal practice and procedure was "to stay with the brunt of kids coming [into]..the main lobby." He would then "walk down the corridor [with the wet vac] and...turn around and come back". At that point, "another bus load of kids [arrived] and it was time to run [the machine] back and forth through the lobby [again]." Defendants conclude from the foregoing that on the day in question, Mr. Banseck properly performed his mopping and other activities "consistently" until "the incoming traffic [was] finished...between eight thirty and a quarter to nine."

In similar fashion, the school's custodial engineer, Richard Petersen, testified at his deposition that "[t]he procedure in the event of rain would be to get an empty mop bucket and a dry mop and the wet vac and set up signs...Kevin [Mr. Banseck] would [then] stay in the lobby until all the students were in the building." In view of the above, defendants argue that the record is devoid of any evidence that they failed to follow their own procedures or inadequately performed their custodial duties in the moments before plaintiff's accident.

To the extent relevant, defendant City of New York (hereinafter, the "City") also moves to dismiss the complaint as against it, on the ground that any cause of action relating to the care, maintenance or safekeeping of public school property must be brought in the name of the Board of Education, an independent body corporate, that is separate and legally distinct from the City (see Education Law §2551). According to this defendant, (1) Education Law §§2554(4), 2590-h(17) and New York City Charter §521 provide that the Board of Education and its Chancellor have been delegated the duty of, inter alia, the care, custody, control and safekeeping of school property; (2) §521(b) of the Charter further provides that lawsuits in relation to such property are to be brought in the name of the Board of Education, and (3) based on the foregoing, that the City is not a proper party to this action. Accordingly, the complaint as against it should be dismissed since the Board of Education is the only legal entity potentially liable in tort for injuries arising in or upon school premises.[FN1]

Addressing the City's contention first, it is the opinion of this Court that although the 2002 amendments to the Education Law (L 2002, ch 91) provided the mayor with greater control over [*3]education by significantly limiting the former power of the Board of Education (see Assembly Memorandum in Support, 2002 McKinney's Session Laws of NY, at 1716-17170), the City and the Board retained their separate legal identities (see Perez v City of New York, 41 AD3d 378, 379, lv denied 10 NY3d 708). According to that Court, "[t]he legislative changes [did] not abrogate the statutory scheme for bringing lawsuits arising out of torts allegedly committed by the Board and its employees, and the City cannot be held liable for those alleged torts" (id.). Therefore, since the City cannot be held liable for any alleged negligence in the maintenance of school property, dismissal of the complaint as against this defendant is appropriate (see Flores v City of New York, 62 AD3d 506, 506; Leacock v City of New York, 61 AD3d 827, 828).

Turning to the balance of the motion, it is well settled that "[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 sufficient length of time to discover and remedy it" (Rodriguez v White Plains Pub. Sch., 35 AD3d 704, 705, citing Perlongo v Park City 3 & 4 Apts, Inc., 31 AD3d 409; see Tomao v City of New York, 61 AD3d 674; see also Gordon v American Museum of Natural History, 67 NY2d 836, 837).

Applying the foregoing principle, it is the opinion of this Court that the Board of Education and P.S. 58 (hereinafter the "defendants") have made a prima facie showing of their entitlement to summary judgment (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851) by demonstrating that they neither created the wet condition that allegedly caused plaintiff's injury, nor did they have actual or constructive notice thereof (see Rogers v Rockefeller Group International, Inc., 38 AD3d 747, supra). As for the standard of care that should apply here, the Court agrees with that in Rogers that defendants were "not obligated to cover all of [their] floors with mats or to continuously mop up all moisture resulting from tracked-in precipitation" (Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d 511, 512; see Rogers v Rockefeller Group International, Inc., 38 AD3d at 749; Negron v St. Patrick's Nursing Home, 248 AD2d 687; cf. LoSquadro v Roman Catholic Archdiocese of Brooklyn, 253 AD2d 856).

In opposition, plaintiffs have failed to raise a triable issue of fact. In particular, their contention that the alleged wet condition of the corridor floor existed for twenty minutes prior to plaintiff's accident, i.e., sufficient for the custodian to discover and remedy it, is unsupported by admissible evidence and belied by the evidence establishing that (1) the custodian's cleaning process was underway at the time of the incident, and (2) he was performing his duties in accordance with the school's reasonable precautions (see Murphy v Lawrence Towers Apts., LLC, 15 AD3d 371, 371-372; Ford v Citibank, N.A., , 11 AD3d 508, 508-509). Moreover, plaintiffs have failed to raise a triable issue of fact regarding the absence of any prior complaints concerning the tracking of precipitation into the school and the occurrence of similar accidents in the past (see Rogers v Rockefeller Group Intl., 38 AD3d at 749-750; Solazzo v New York City Tr. Auth., 21 AD3d 735, 736, affd 6 NY3d 734; cf. LoSquadro v Roman Catholic Archdiocese of Brooklyn, 253 AD2d at 857-858). A general awareness that water may be tracked into school buildings during inclement weather is insufficient, standing alone, to establish constructive notice of the particular condition that may have caused a given person to slip or fall (see Rogers v Rockefeller Group Intl., 38 AD3d at 750; Yearwood v Cushman & [*4]Wakefield, 294 AD2d 568,569).

Accordingly, it is

ORDERED, that defendants' motion for summary judgment and dismissal of the complaint is granted, and the complaint is hereby dismissed; and it is further

ORDERED, that the Clerk enter judgment accordingly.

ENTER,

Dated: November 16, 2009_/s/________________________

Hon. Thomas P. Aliotta

J.S.C. Footnotes

Footnote 1: By way of background, the City notes that although various provisions of the Education Law relating solely to the governance of the New York City School District were amended by Chapter 91 of the Laws of 2002 (effective July 1, 2002), such reforms made the Mayor of New York more "politically accountable" for the performance of the New York City School District and the quality of the education provided to its students, but did not disturb or alter the allocation of legal responsibility for tort claims between the City and the Board of Education.