Then v 600 W. 183rd St. Realty Corp.

[*1] Then v 600 W. 183rd St. Realty Corp. 2014 NY Slip Op 51423(U) Decided on September 25, 2014 Supreme Court, New York County Ling-Cohan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 25, 2014
Supreme Court, New York County

Milagros Then, Plaintiff,

against

600 West 183rd Street Realty Corp., Defendant.



108541/2011



The appearances of counsel are as follows:Plaintiff:Melucci Firm, PC1100 Franklin Ave, Suite 305

Garden City, NY 11530Defendant:

Robert BernsteinBaker Greenspan & Bernstein

2099 Bellmore Ave

Bellmore, NY 11710
Doris Ling-Cohan, J.

Defendant moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiff's complaint. For the reasons set forth below, the motion is denied.

Parties' Allegations and Procedural Background

Plaintiff resided in a building (the Building) located at 600 West 183rd Street, New York, New York, in apartment 41 (the Apartment) (bill of particulars, item 2; plaintiff EBT at 6). The Building is owned by defendant (complaint, ¶ 8-admitted answer, ¶ 4). The Apartment is a three-bedroom apartment on the fourth floor of the Building and in August 2010, plaintiff lived there with her two adult sons, Alixmil Reyes (Alixmil) and Eudes Reyes (Eudes) (plaintiff EBT at 19-20, 16-17).

On August 28, 2010, at about 2:00 p.m., after having lunch with Rafaelina Anderson (Rafaelina), who plaintiff refers to as her niece but is the daughter of a friend, the two women left the Apartment and, since the Building's elevator was not working, walked down the staircase nearest to the Apartment (id. at 56-59, 61). Plaintiff stated she had complained previously regarding the elevator not working and on three occasions of the dirty condition of the stairs (id. [*2]at 28, 38-40). She stated that she had complained by phoning the defendant's office and speaking with the secretary, Rosa, and by speaking to Jose Patino (Jose), the Building's porter (id. at 38-40, 42, 45-46). She further stated that she had observed Jose sweeping and mopping the stairs and that, after her complaints regarding the condition of the stairs, she would later see that they had been cleaned (id. at 48).

Plaintiff contends that on August 28, 2010, when she and Rafaelina were walking down the stairs between the second and first floors, she slipped and fell on a foreign substance (the Foreign Substance) that looked to her like vomited milk on the third step from the second floor, causing her to fall down the steps and injure herself (id. at 76, 78-82, 83-84, 94-96). She also states that the Foreign Substance could have been spilled garbage (id. at 94-95).

Plaintiff commenced this action on or about July 25, 2011. On or about September 21, 2011, defendant interposed its answer and concurrently, served its notice for discovery and inspection with a demand for the names and addresses of eyewitnesses and notice witnesses (the D & I Notice). On or about January 25, 2012, plaintiff served her response, including identifying certain witnesses (the D & I Response). Plaintiff was deposed on October 9, 2012 and defendant was deposed on January 8, 2013. A note of issues was filed on or about May 30, 2013, and, thereafter, defendant made the instant motion for summary judgment. Plaintiff's opposition papers included affidavits from certain witnesses, which defendant argues were not previously disclosed.

In support of its motion for summary judgment, defendant states that its property manager visited the Building once or twice a day to supervise Jose, to see to cleanliness of the property and the requirement for any repairs (Nahum EBT at 7-8). It asserts that Jose, the porter, lived in the Building, that his duties including inspecting, sweeping and mopping the floors and stairs every morning and that the Building's tenants had his cell phone number to inform him of any complaints (id. at 12; Jose affidavit, ¶¶ 2-3). It states that there were no complaints on the day of plaintiff's accident regarding the condition of the stairs (Nahum EBT at 20). It contends that the regular routine of cleaning is that Jose sweeps the floor and stairs between 7:30 and 9:00 a.m. every day and if he observes "any spills or other substance on the interior steps, or if a tenant informs [him] of a condition on the steps, [he cleans] the steps immediately" (Jose affidavit, ¶ 5). It further contends that on August 28, 2010, Jose was present at the Building and that he "did not observe any spills or other substance anywhere on the interior steps . . . [or] on the day before the plaintiff's accident . . . [and that] [n]o one complained to [him] that there were any foreign substances anywhere on the interior steps in the [B]uilding that day" (id., ¶¶ 6-7).

Annexed to her opposing papers, plaintiff submitted affidavits of Eudes, Alixmil, Melida Bisono, Nancy Crisosomo, Paulina Lopez, Fiordaliza Polaco, Josefa Mencia (collectively, the Tenant Witnesses) and Rafaelina. Eudes and Alixmil state in their one-page affidavits that they had used the staircase earlier the morning of August 28, 2012 and they had observed the Foreign Substance on the steps between the first and second floors. The Tenant Witnesses have submitted virtually identical one-page affidavits, each noting that they live in the Building and stating that they observed that the stairs were dirty and that they observed the Foreign Substance on the steps at 9:00 a.m. on August 28, 2010. Rafaelina's affidavit states that she observed the Foreign Substance on August 28, 2010 at 1:30 p.m. when she went up to the Apartment to visit with the plaintiff and, that it was still there at 2:00 p.m., since she saw it after the plaintiff fell [*3](Rafaelina affidavit, ¶¶ 2-6, 8-10).

In its reply, defendant notes that Eudes and Alixmil are plaintiff's sons, that she calls Rafaelina her niece and that they were not identified in the D & I Response as witnesses. It further notes that in the D & I Response, plaintiff did not provide addresses for her witnesses. It contends that due to the familial relationship and the lack of significant detail in the witnesses' affidavits, they raise only feigned issues of fact and should be disregarded and, accordingly, that its motion for summary judgment dismissing the complaint should be granted.

Summary Judgment

A party seeking summary judgment must make a prima facie case showing that it is entitled to judgment as a matter of law by proffering sufficient evidence to demonstrate the absence of any material issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). If the movant fails to make this showing, the motion must be denied (id.). Once the movant meets its burden, then the opposing party must produce evidentiary proof in admissible form sufficient to raise a triable issue of material fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In deciding the motion, the court must draw all reasonable inferences in favor of the nonmoving party and deny summary judgment if there is any doubt as to the existence of a material issue of fact (Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931, 932 [2007]; Dauman Displays v Masturzo, 168 AD2d 204, 205 [1st Dept 1990], lv dismissed 77 NY2d 939 [1991]). "Where different conclusions can reasonably be drawn from the evidence, the motion should be denied" (Sommer v Federal Signal Corp., 79 NY2d 540, 555 [1992]). However, where a party submits affidavits that " clearly contradict [his or her] deposition testimony ... [this submission] can only be considered to have been tailored to avoid the consequence of [such] earlier testimony" and is deemed to be a feigned issue and, consequently, is insufficient to defeat summary judgment (Fernandez v VLA Realty, LLC, 45 AD3d 391, 391 [1st Dept 2007]; see also Washington v New York City Bd. of Educ., 95 AD3d 739, 740 [1st Dept 2012]; Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [1st Dept 2000]).

Premises Liability

Generally, a landowner must act as a reasonably prudent person in maintaining its property in a reasonably safe condition under all the circumstances, including the likelihood of injury, the potential seriousness of injury and the burden of avoiding the risk (Peralta v Henriquez, 100 NY2d 139, 144 [2003]). Additionally, a party must be aware of the alleged defective or dangerous condition, either through having created it, actual knowledge of the condition or constructive notice of it through the defect's visibility for a sufficient amount of time prior to the accident to enable a defendant to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).

Moreover, "[a] defendant moving for summary judgment in a slip-and-fall action has the initial burden of showing that it neither created, nor had actual or constructive notice of the dangerous condition that caused plaintiff's injury" (Ross v Betty G. Reader Revocable Trust, 86 AD3d 419, 421 [1st Dept 2011]; Amendola v City of New York, 89 AD3d 775, 775 [2d Dept 2011]; Schiano v Mijul, Inc., 79 AD3d 726, 726 [2d Dept 2010]).

Discussion

Initially, by presenting Jose's affidavit as to his regular practice of daily mopping and sweeping the stairs between 7:30 and 9:00 a.m. each morning and that he observed the stairs on [*4]August 28, 2010 and did not see the Foreign Substance that day (Jose affidavit, ¶¶ 2-7), defendant has shown "that it neither created, nor had actual or constructive notice of the dangerous condition that caused plaintiff's injury" (Ross, 86 AD3d at 421; see also Gomez v J.C. Penny Corp., Inc., 113 AD3d 571, 572 [1st Dept 2014]). As explained above, the court must then consider whether plaintiff has raised a material issue of fact controverting defendant's showing.

In opposition, plaintiff submits the affidavits of Rafaelina, Eudes and Alixmil, which all state that they observed the Foreign Substance, so as to provide constructive notice of the condition. While neither Eudes nor Alixmil are listed as witnesses in the D & I Response, such tenants are all tenants in the Building and, therefore, defendant had the opportunity to obtain information from them. Moreover, Rafaelina was identified by plaintiff as a witness to the accident, at plaintiff's deposition on October 9, 2012, more than nine months before defendant made this motion (plaintiff EBT at 78-80). Defendant, therefore, had a reasonable opportunity to obtain discovery and the court declines to preclude consideration of these affidavits.

Defendant also notes the abbreviated nature of the Tenant Witnesses' affidavits, the familial relationship between plaintiff, Eudes, Alixmil and Rafaelina and contends that this renders them incredible and unworthy of belief as a matter of law. Rafaelina, however, is not a relative of plaintiff (id. at 58). Additionally, "[c]ourts may not resolve summary judgment motions by making credibility determinations, as those are exclusively within the province of the trier of fact" (Sosa v 46th St. Dev. LLC, 101 AD3d 490, 493 [1st Dept 2012]; see also Santana v 3410 Kingsbridge LLC, 110 AD3d 435 [1st Dept 2013]). Further, defendant has not shown that Rafaelina's affidavit or the Notice Witnesses' affidavits "clearly contradict" plaintiff's testimony and, therefore, it has not shown that they were "tailored to avoid the consequence" of such earlier testimony (Fernandez, 45 AD3d at 391). Since defendant has not established that the plaintiff's opposition consisted of feigned testimony, there are credibility issues that are more properly resolved at trial regarding whether the Foreign Substance was on the steps and, if so, whether it was there for a sufficiently long period of time to enable defendant to become aware of it and to correct it (Santana, 110 AD3d at 435; Sosa, 101 AD3d at 493). Accordingly, defendant's motion for summary judgment must be denied.

It is, therefore,

ORDERED that the motion of 600 West 183rd Street Realty Corp. for summary judgment is denied; and it is further

ORDERED that within 30 days of entry of this order, plaintiff shall serve a copy upon defendant, with notice of entyr.

Dated: September ___, 2014

________________________

Doris Ling-Cohan, J.S.C.