Harp v Whittaker

[*1] Harp v Whittaker 2014 NY Slip Op 51588(U) Decided on October 29, 2014 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 29, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., SOLOMON and ELLIOT, JJ.
2013-1297 K C

Tamica Harp, Respondent,

against

Albertina Whittaker, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered April 1, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,000.

ORDERED that the judgment is affirmed, without costs.

On December 28, 2005, plaintiff was injured when she allegedly slipped and fell on water which had leaked from the ceiling to the floor of the apartment which her mother rented from defendant landlord. Plaintiff commenced this action to recover the sum of $25,000, alleging that defendant had notice of this unsafe condition and had been negligent in failing to remedy it. After a nonjury trial, at which both plaintiff and defendant testified, the Civil Court awarded judgment in favor of plaintiff in the principal sum of $3,000, from which judgment defendant appeals.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the trial judge had the advantage of seeing the witnesses and hearing their testimony (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

Plaintiff met her burden of proof at trial by showing that there had been an unsafe condition on the premises, i.e., a leaky condition in the ceiling of the apartment in which she was living; that defendant had actual notice of the condition; that defendant had failed to correct or take sufficient precautions to remedy the condition before the accident occurred; and that such failure was a substantial factor in causing plaintiff's injuries (see generally PJI 2:90, 2:91). Plaintiff's testimony further demonstrated that, as a result of the accident, she had experienced pain and suffering, and she was therefore entitled to recover damages therefor.

Although defendant testified regarding the attempts that she and/or her husband had made to fix the leakage prior to the time plaintiff was injured, her credibility was undermined by her inability to produce any receipts to show that she had purchased materials to fix the leakage, in order to substantiate her contention that such attempts had been made.

We note that we do not consider those assertions made by defendant, or the materials annexed to her appellate brief, which are dehors the record (see Chimarios v Duhl, 152 AD2d [*2]508 [1989]).

Since the Civil Court's findings were based upon credibility determinations and are warranted by the facts, there is no basis to disturb the judgment. Accordingly, the judgment is affirmed.

Weston, J.P., Solomon and Elliot, JJ., concur.

Decision Date: October 29, 2014