Rodriguez v 705-7 E. 179th St. Hous. Dev. Fund Corp.
Annotate this CaseDecided on September 16, 2009
Supreme Court, Bronx County
Isamar Rodriguez, Plaintiff,
against
705-7 East 179th Street Housing Development Fund Corporation, Defendant.
7268/2005
plaintiff's counsel:
Beth Diamond, Esq.
Dinkes & Schwitzer, PC
112 Madison Avenue
New York, NY 10016
defendant's counsel:
Jennifer Toth
Lester, Schwab, Katz & Dwyer
120 Broadway
New York, NY 10271
Betty Owen Stinson, J.
This motion by defendant for summary judgment dismissing the complaint is granted.
On January 27, 2005 around 8:30 a.m., plaintiff was injured when she slipped and fell near the entrance of defendant's building. Plaintiff commenced this action against the building cooperative alleging her fall was due to a patch of ice together with a rug that was not secured. After the completion of discovery, defendant made the instant motion for summary judgment dismissing the complaint for failure to show defendant had notice of a hazardous condition.
Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment (Andre v Pomeroy, 35 NY2d 361 [1974]). A party opposing a motion for summary judgment must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact (Friends of Animals v Associated Fur Manufacturers, 46 NY2d 1065 [1979]). To establish [*2]negligence in a case of a slip and fall, a plaintiff must prove the defendant had actual or constructive notice of a hazardous condition, including snow or ice, which caused the fall, and sufficient time, within the exercise of reasonable care, to correct or warn about its existence (DeVivo v Sparago, 287 AD2d 535 [2nd Dept 2001]). Actual notice is established if it can be proved defendant caused or created the hazardous condition (Lewis v Metropolitan Transportation Authority, 99 AD2d 246 [1st Dept], aff'd 64 NY2d 670 [1984]).
In support of the motion, defendant offered plaintiff's bill of particulars, plaintiff's deposition testimony, the testimony of one of the building's board members and photographs of the building's entrance. Plaintiff's bill of particulars alleged that plaintiff was "ascending the exterior entrance steps when she was caused to slip and fall due to the wet and icy condition of the steps and/or mat/rug on the steps".
The photographs showed the building entrance with two steps immediately coming down from the door, a long landing area with a slightly smaller rug or mat on it and then two more steps leading down to the courtyard of the building.
Plaintiff testified that she was leaving the building with her daughter when she fell (Deposition of Isamar Rodriguez, August 21, 2007). The weather was "very cold", but it was not snowing or raining (id. at 13). Plaintiff testified that she fell on the bottom two steps (id. at 15) and "[t]here was a longer rug that covered these steps, the bottom ones" (id. at 16)."[I]t was covered and it was loose, and that rug was frozen" (id. at 17). There was an "icy patch" and it was on the rug (id. at 21). Plaintiff fell on the icy patch on the rug (id. at 37). She did not see ice on the top two steps or on the landing (id. at 29-30). Plaintiff did not see ice before she fell (id. at 27). There was no snow on the path (id. at 63). She could not remember whether the rug moved at all after she fell (id. at 31). The rug was, however, not straight and "kind of crumbled [sic] up" before her fall (id. at 31). It was not "flat out" on the steps (id. at 32).She had seen the rug there before a couple of times, but never complained about it except to her mother and other tenants (id. at 18-20). She did not complain about ice on the rug to the building's coop board (id. at 33).
Raymond Agosto testified that he was a member of the coop board and a part-time employee of the board (Deposition of Raymond Agosto, October 3, 2008 at 9-10). The coop board also hired Cecilio Abreu as a porter to take out garbage, mop, sweep, remove snow and put salt on the sidewalk (id. at 21). Abreu worked Sundays and Tuesdays through Fridays from 5 p.m. to 9:00 p.m. (Id. at 21-22). If Abreu was not there when snow fell or if he could not come, Agosto himself or other board members would shovel the snow and spread salt (id. at 22-24). Abreu was instructed to always spread a layer of salt after shoveling and he always did that (id. at 58-59). If Abreu thought it might snow the next day, he spread a layer of salt in anticipation (id. at 59). The landing was approximately 6' long and covered with ceramic tiles (id. at 41). There was a mat or rug on the landing with some kind of slippage preventive material on the back (id. at 40). The rug was 4' to 5' long and 3' to 4' wide (id. at 41). The rug, or one like it, has always been in that same position since late 2003 or early 2004 (id. at 28, 35). The marble steps by the door and the granite steps at the end of the landing were never covered with anything, even temporarily (id. at 37-38, 44). Abreu was never instructed to cover the steps (id. at 96). The night before plaintiff's accident, sometime around 6:30 or 7:30 p.m., Agosto saw the rug in its proper position and he did not see either wetness or ice on it (id. at 79-80). The next morning, [*3]another person who lived in the building, a Ms. Cruz, notified Agosto that her husband had seen plaintiff on the ground in front of the building, that he came back to his apartment, made a phone call and then left for work (id. at 86). Agosto then finished dressing, went outside at about 9:05 a.m. and saw plaintiff being lifted into an ambulance (id. at 69). He found the subject mat folded in half and tossed over to the side (id. at 77). Ms. Cruz told him that this is also the way she had found it when she went outside to assist the plaintiff (id. at 78). Agosto did not see any wetness or ice on the mat or on the sidewalk (id. at 90-91). Agosto asked "everyone" and was told no one knew who had touched the mat (id.). He was not aware of any prior accidents at the entrance (id. at 89).
In opposition to the motion, plaintiff offered her own affidavit and argued that her claim in the bill of particulars, related to causing and creating the hazardous condition, referred exclusively to the rug placed on the exterior steps and left in a loose and unsecured position, and that both an icy condition on the stairs and the "movable crumbled [sic] rug" caused plaintiff's injuries. She stated in her affidavit that her fall was caused by the "wet and icy condition of the stairs and the rug thereon combined with the movement and crumpling of the unsecured rug".
Plaintiff's explanation of the accident is somewhat confusing, but giving her the benefit of every possible inference, she either slipped or tripped on the "frozen" rug as it covered steps at the end of the landing, or she tripped on the somewhat bunched-up rug on the landing, having included the landing in her description as part of the "steps" at the entrance of the building. No matter which scenario is the cause of her injuries, defendant has demonstrated its entitlement to summary judgment and dismissal of the complaint.
Defendant established that it had no notice, either actual or constructive, of a hazardous icy condition or of a hazardous condition involving the rug prior to plaintiff's accident. The rug was observed to be in its proper position the night before plaintiff's accident, no ice was visible on the rug or in the vicinity at that time, there were no prior complaints about the rug, which had been in place for approximately one year, and no record of prior accidents in that location. Agosto testified that the steps themselves were never covered with the rug or anything else and that Abreu had never been instructed to cover the steps. Agosto's testimony established as well that salt was always spread in the area after snow shoveling and, additionally, even before anticipated snow storms. Plaintiff herself testified that she saw no ice or snow at the entrance before her fall the following morning.
Neither plaintiff's testimony nor her affidavit in opposition create an issue of fact as to whether defendant had notice of a hazardous condition or conditions causing her to fall. Defendant did not see the rug crumpled or moved from its proper position on the landing before plaintiff's accident and a "general awareness that carpet runners occasionally bunch up is insufficient by itself to constitute notice of a dangerous condition" (see Kwitny v Westchester Towers Owners Corp., 47 AD3d 495 [1st Dept 2008]). The carpet could have been moved or "crumpled" by anyone only minutes before plaintiff's fall. No one, including plaintiff, saw ice at or near where she fell before the fall occurred.
Movant is directed to serve a copy of this order on the Clerk of Court who shall enter judgment dismissing the complaint.
This constitutes the decision and order of the court.
Dated: September 16, 2009
[*4]
Bronx, New York
_______________________________
BETTY OWEN STINSON, J.S.C..
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