Rosario v New York City Hous. Auth.

Annotate this Case

Download PDF

Rosario v New York City Hous. Auth. 2012 NY Slip Op 31458(U) May 25, 2012 Sup Ct, NY County Docket Number: 114517/2009 Judge: Cynthia S. Kern Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 61112012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART Justlce - Index Number : 114517/2009 - ROSARIO, ELENA vs. NYC HOUSING AUTHORITY SEQUENCE NUMBER : 002 INDEX NO. MOTION DATE MOTION 9EQ. NO. SUMMARY JUDGMENT I ,were read on thio motlon t-Ho The followlng papers, numbered 1 to Notice of MotlonlOrder to Show Caurs -Affldavb - Exhibltm IW 5 ) . I Wd. IN O W . Antwerlng Affldavlbs - Exhlbb Replying Affldavltr Upon the foregolng papem, it is ordered that thle motlon Is 1s decided in accordance with the annexed decision. ?,Y1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. .............. MOTION IS: CHECK IF APPROPRIATE: ................................................ O NON-FINAL DISPOSITION CASE DISPOSED GRANTED 0SETTLE ORDER DO NOT POST , J.S.C. DENIED 0GRANTED IN PART 0SUBMIT ORDER FIDUCIARY APPOINTMENT OTHER REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 5 5 ELENA ROSARIO, Plaintiff, -against- Index No. 1 145 17/09 DECISION/ORDER THE NEW YORK CITY HOUSING AUTHORITY, Recitation, as required by CPLR 221 9(a), of the papers considered in the review of this motion for : PaDers Notice of Motion and Affidavits Annexed .................................... Answering Affidavits.. .................................................................... Cross-Motion and Affidavits Annexed ........................................... Answering Affidavits to Cross-Motion. .......................................... Replying Affidavits.. .................................................................... Exhi bits.. ......................................................................... ,.......... Numbered ]FILED 2 MAY 3 1 2012 3 4 NEW YORK ?nL,lJd" CLERKS OFFICE Plaintiff commenced the instant action to recover damages for personal injuries she allegedly sustained when she slipped and fell on debris and liquid on an interior staircase in an apartment building located at 5 14 West 1 34IhStreet, New Yurk, New York on October IS, 2008. Defendant New York City Housing Authority ("NYCHA") now moves for an order pursuant tu CPLR $32 12 granting it summary judgment on the grounds that it did not cause and create the condition and it did not have notice of the condition. For the reasons set forth below, NYCHA's motion for summary judgment is granted, The relevant facts are HS follows. On January 12, 2009, plaintiff allegedly slipped und fell [* 3] .. while she was descending an interior staircase in an apartment building located at 5 14 West 1 34 h Street, New York, New York (the building ), part of the NYCHA-owned Manhattanville Houses. Plaintiff alleges that on the day of her accident, she was working for Priority Home Care as a home attendant caring for Nilva Olan, a tenant in the building. PlaintifFs usual work hours with Ms. Olan were from 9:OO a.m. until 3:OO p.m, Monday through Saturday. On the date of the accident, plaintiff reported for work at Ms. Olan s apartment, Apt. 4C, on the 4 Floor at 9:OO a.m. She alleges she got to the apartment by walking up to the fourth floor after she was buzzed into the building by Ms. Olan. The stairway that she ascended to get to Ms. Olan s apartment was the same stairway that she used six days a week and the same stairway that she used to descend from Ms. Olan s apartment on the day she was injured. It is undisputed that it is the main staircase in the building. Plaintiff alleges that when she entered the building at 9:OO a.m. on the date of the accident, she did not see any liquid or debris on the stairway and that she did not have any problem ascending the stairs to get to Ms. Olan s apartment. Further, plaintiff described the weather on the date of her accident as normal and she did not remember exactly when it had last snowed but that it hadn t snowed or mined that day. She alleged that there was some snow on the ground outside at the time of her accident but that the snow was not deep. On the date of the accidenl, at approximately 1 1 :00 a.m., plaintiff alleges that she and Ms. Olan left Ms. Olan s apartment to go to Ms. Olan s foot doctor appointment. Pltlintiff descended the stairway first and was followed by Ms. Olan. Plaintiff and Ms. Olan descended the staircase from the fourth floor to the second floor without m y problem. As plaintiff was descending from the landing between the second and first floors, she ulleges that she stepped down with her right 2 [* 4] foot onto the lowest step and slipped and fell. Plaintiff alleges that when she got up from the floor, she noticed that her pants were wet with something sticky, greasy or sticky. She said that she then saw wet foot prints on the floor of the lobby and that she was able to see bags of candy, liquid and grease on the stairway where she fell. Plaintiff testified that she did not see these items when she ascended the stairway at 9:OO a.m. earlier that day. Plaintiff further alleges that she did not see anyone that she believed to be employed by NYCHA on the date of her accident and she had no contact with anyone from NYCHA on the date of her accident. She alleges that she never discussed her accident or the condition of the stairway with anyone from NYCHA and never complained to a NYCHA employee about the condition of the stairway prior to her accident. When plaintiff returned from Ms. Olan s foot doctor appointment a few hours later, she and Ms. Olan ascended the same stairway that she had fallen on earlier and both the lobby and the stairway had been cleaned between then and the time of her accident. A defendant who moves for summary judgment in a slip and fall case has the initial burden of making aprirnafucie showing that it did not cause the condition and that it did not have actual or constructive notice of the condition. See Branhum v. Loews Orpheum Cinemas, 31 A.D.3d 3 19 (1st Dept 2006). 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. Gordun v American Museum of N m r a l History, 67 N.Y.2d 836,837-838 (1986). Further, when R landowner has actual knowledge of the tendency of a particular dangerous condition to reoccur, he is charged with constructive notice of each specific reoccurrence of that condition. Weisenrhal 11 Yickman, 153 A.D.2d 849, [* 5] 85 1 (2d Dept 1989). However, a general awareness is insufficient to constitute constructive notice. See Gordon, 67 N.Y.2d at 837-838. Plaintiff is required to show by specific factual references that the defendant had knowledge of the allegedly recurring condition. Stone v Long Is. Jewish Med, Ctr., 302 A.D.2d 376, 377 (2d Dept 2003). Moreover, a prima facie case of negligence must be based on something more than conjecture; mere speculation regarding causation is inadequate to sustain the cause of action. Coiiclusory allegations unsupported by evidence are insufficient to establish the requisite notice for imposition of liability. See Mandel v 370 Lexington Ave., LLC, 32 A.D.3d 302, 303 (1 Dept 2006). In the instant action, NYCHA has established its prima facie right to summary judgment on the grounds that it did not cause the condition on which plaintiff slipped and fell and that it did not have actual or constructive notice of the condition on which plaintiff slipped and fell. Emerito Mendez, a janitorial Caretakcr employed by NYCHA, testified that he was employed as the janitorial Caretaker of the building on the date of plaintiff s accident Additionally, Caroliiic Soriano, Supervisor of Caretakers in the Manhattanville Houses for over eight years, provided the work schedule for the building and affinned that Mr. Mendez performed his usual cleaning functions on the date of plaintiffs accident. Mr. Mendez testified that his usual routine was to sweep and spot mop the lobby area as well as the stainvays and hallways of the building on a daily basis between 10:15 a m . and 10:SO a.m and that he would spot mop at other times of the day whenever he noticed liquids or debris 011 the floor of the building or on the stairways. Mr. Mendez further testified that he did not place the itenis on which plaintiff slipped and fell on the stairway He also testified that he had no personal knowledge of plaintiffs accident and only learned of the accident in conjunction with the lawsuit. Mr. Mendez further testified that the 4 [* 6] only complaints he received from tenants in the building were, on occasion, when items of furniture were left in the hallway or on the floors of the building. Additionally, Ms. Soriano affirmed that she did not receive any tenant complaints prior to January 12,2009 regarding janitorial conditions in the building. Moreover, Mr. Mendez noted that there generally was not much debris on the stairway on which plaintiff fell but that the debris situation was worse on the sixth floor stairway leading to the roof where kids who lived in the building would sometimes congregate. Mr. Mendez testified that he had reported the tenant teenager situation that was occurring on the roof to his employer and a notice was sent out to the tenants regarding such conduct, In response, plaintiff has failed to raise an issue of fact as to whether NYCHA caused the condition or whether NYCHA had actual or constructive notice of the condition. As an initial matter, plaintiff has offered no evidence establishing that NYCHA caused the condition as she has not alleged or shown that NYCHA employees deposited the garbage or liquid on the stairs. Further, plaintiffs assertion that NYCHA caused the condition by failing to place mats in the lobby on the date of plaintiff 9 accident is without merit. Mr. Mendez testified that if it had rained a lot or was snowing, a rubber mat would be placed along the length of the lobby of the building from the second door leading from the foyer up to the beginning of the stuirwuy. It is undisputed that on the day of plaintiffs accident, it was neither snowing nor raining and it had no1 snowed or rained for at least 24 hours before plaintiffs accident. Moraovar, plaintiff has niade no allegation that she slipped and fell on snow or water brought in from the outside but rather that she slipped and fell on a greasy, sticky substance and debris including bags of candy. Even if NYCHA was negligent for not placing mats in the lobby on the day of plaintiffs 5 [* 7] accident, which it was not, plaintiffs accident was not due to such negligence as placing mats in the lobby would not have prevented the grease, sticky liquid and garbage from being on the stairway on which she fell. Moreover, it is well-settled that a defendant is not required to cover all of its floors with mats, nor continuously mop up all moisture resulting from tracked-in iy melting snow. Kovelsky v. The Ct University ofNew York, 221 A.D.2d 234 (1 Dept 1995) citingto Miller v, Girnble Bros., 262 N.Y. 107 (1933). Additionally, plaintiff has failed to raise an issue of fact as to whether NYCHA had actual or constructive notice of the condition. Plaintiff testified that she did not complain to anyone prior to her accident about the condition of the particular stairway on which she fell nor has she presented any evidence that defendant was aware of the specific condition on the stairs which allegedly caused her to fall. Plaintiffs testimony that Ms. Olan had complained to the super about the janitorial conditions in the building on prior occasions is insuficient to constitute actual notice of the specific condition on which plaintiff fell. The First Department has held that [elvidence of a general awareness of debris and spills in the stairway does not require a finding that defendant is deemed to have notice of the condition that caused plaintiff to fall. See Torres v New Yo& City Hous. Auth., 85 A.D.3d 469 (1 Dept 201 1). Plaintiff has failed to raise a factual issue as to whether NYCHA h e w about the specific condition on the stairway on which she fell and failed to remedy it prior to her accident, Moreover, in order to establish constructive notice of an alleged defect. the alleged defect must (1) be visible and apparent and, (2) exist for a sufficient length of time prior to the accident to permit (a> discovery of the dcfect and (b) time to remedy the defect. See Gordun, 67 N.Y 2d at 837-38. As an initial matter, plaintiff has failed to raise an issue of fact as to whether the 6 [* 8] condition was visible and apparent. Plaintiffs own testimony demonstrates that she did not even see the debris or sticky, wet substance on the stairway prior to her fall. Further, plaintiff has failed to raise an issue of fact as to whether the condition on the stairway existed for a sufficient length of time prior to her accident to allow NYCHA to discover the condition and allow for time to remedy the condition. According to plaintiffs own testimony, there was only a two hour period between the time plaintiff ascended the stairway at 9:OO a.m., when plaintiff alleges the stairway was clear of debris and liquid, and the time plaintiff descended the stairway at 1 1 :00 am. when she slipped and fell on the condition. Plaintiff has not put forth any evidence disputing the fact that the stairway was cleaned sometime between 10:15 a.m. and 10:50 a.m. on the day of her accident. Thus, the debris and liquid on which plaintiff slipped and fell could have been deposited there only minutes or seconds before plaintiff's accident. Any finding as to when the debris and liquid came to be placed on the stairway would be based solely on speculation which is not enough to support an allegation of constructive notice. See Penny 11. Pembrook Mgmt., 280 A.D.2d 590 (2d Dept 2001)(holding that because injured plaintiff testified that she did not see patch of ice in parking lot anytime before her accident, any finding as to when the ice patch developed is pure speculation, and thus insufficient to support allegation of constructive notice of the ice patch); see also Gordon, 67 N.Y.2d at 838. Although plaintiff asserts that she always saw garbage in the stairway o f t l x building, constructive notice cannot be imputed to NYCHA on that basis. The Court of Appeals has held that neither general awareness that litter or some other dangerous condition may be present (citation omitted), nor the fact that plaintiff observed other ptlpers on another portion of the steps approxirnalely 7 .. . . .. .. . . . .. . [* 9] 10 minutes before his fall is legally sufficient to charge defendant with constructive notice of the paper he fell on. Gordon, 67 N.Y.2d at 838. Rather, a plaintiff must show that the defendant had knowledge of the particular dangerous condition that is qualitatively different from a mere general awareness that a dangerous condition may be present. Gonzulez v . Wul-Marl Stores, Inc., 299 Fed.Supp.2d 188 (S.D.N.Y. 2004). Thus, NYCHA s motion for summary judgment on the grounds that it did not cause the condition on which plaintiff slipped and fell and it did not have actual or constructive notice of the condition on which plaintiff slipped and fell is granted. Accordingly, NYCHA s motion for summary judgment dismissing plaintiffs complaint is granted. The Clerk is directed to enter judgment in favor of NYCHA and against plaintiff. This constitutes the decision and order of the court. Enter: e J.S.C. NEW YORK COUNTY CLERK S OFFICE

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.