Gonzalez v Banzer
Annotate this CaseDecided on October 18, 2004
Supreme Court, Kings County
Carmen Gonzalez, Plaintiff,
against
Monika Banzer, et al,, Defendants.
24542/00
David Schmidt, J.
Upon the foregoing papers, the motion by defendants 360 Clinton Tenants Corp. (Clinton) and Arco Metro Management, Inc. (Arco) for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint and all cross claims insofar as asserted against them and the cross motion by defendants Monika Banzer and Charles Dennis for an order granting summary judgment dismissing the complaint and all cross claims against them are granted.
On April 25, 2000, plaintiff Carmen Gonzalez was allegedly injured when she slipped on a doormat in front of an apartment occupied by Monika Banzer and Charles Dennis. Thereafter, she commenced this negligence action against said defendants, as well as against Clinton and Arco, the owner and managing agent, respectively, of the premises where the accident occurred.
In their motion, Clinton and Arco contend that plaintiff has failed to produce any evidence that they created the alleged condition which caused plaintiff's accident or had actual or constructive notice of the alleged hazard. In fact, according to movants, "plaintiff has failed to even show that the doormat placed by the co-defendants outside their apartment either constituted a dangerous or [*2]defective condition". Movants refer to plaintiff's deposition testimony in which she indicated that she fell as the mat slid and that she did not see any debris in front of co-defendants' apartment. Movants point out that the mat in question was purchased by Monika Banzer and placed by her in front of her apartment door.
In their cross motion, Monika Banzer and Charles Dennis likewise argue that plaintiff has failed to prove that the mat constituted a defective or dangerous condition. Although plaintiff apparently testified that a white towel was under the mat, cross movants assert that they did not place such a towel under the mat but, even if they did, plaintiff has offered no proof that the use of a towel caused the mat to slide.
In opposition to the motion and cross motion, plaintiff contends that Monika Banzer and Charles Dennis "placed this mat in the hallway. . . and thus created the unsafe and dangerous condition" and that Clinton and Arco "knew or should have known that this unsafe, dangerous and hazardous condition existed". Plaintiff argues that the mat was dangerous because it did not have any "non-skid" material on it, it was placed on a floor with a "smooth marble-like finish" and there was a towel underneath the mat which likewise did not have any "non-skid" material on it. Plaintiff submits the affidavit of Arthur Weber, a professional engineer, who examined the floor outside the apartment and plaintiff's photographs of the mat. According to Mr. Weber, application on the mat of a force of as little as 8.8 pounds would cause the mat to slide across the terrazzo hallway floor. He therefore concluded that placement of the mat, which had not been treated to make it more slip-resistant, created a dangerous condition. Because a porter employed by Clinton would periodically wax the hallway floors and remove the doormat for a day, plaintiff asserts that Clinton and Arco may be charged with actual notice of the unsafe and dangerous condition. Moreover, plaintiff argues that Clinton, as owner of the premises, had a nondelegable duty, pursuant to Multiple Dwelling Law § 78, to maintain its premises in a reasonably safe condition and it breached its obligation under the statute by allowing an unsafe condition to exist. Plaintiff further maintains that Clinton and Arco had constructive notice of the unsafe condition because the mat had been present for ten months prior to the subject accident.
It is well settled that on owner or occupant of premises cannot be held liable for injuries caused by an allegedly defective condition unless the plaintiff establishes that it either created or had actual or constructive notice of the condition (see Gordon v American Museum of Natural History, 67 NY2d 836[1986]. To constitute constructive notice, the defect must be visible and apparent and it must exist for a sufficient length of time before the accident to permit the defendant an opportunity to discover and remedy it (see Lee v Bethel First Pentecostal Church of America, Inc., 304 AD2d 798 [2003]).
In response to defendants' prima facie showing that they had no actual or constructive notice of the condition, plaintiff has failed to establish the existence of a triable issue of fact. There is no evidence that either of the defendants created or had actual notice of the slippery nature of the floor mat, as opposed to its mere presence, notwithstanding that Monika Banzer admittedly purchased the mat and placed it in front of her apartment door and Clinton's porter periodically removed it from the hallway so that the floors could be cleaned. Plaintiff's assertion that defendants knew or should have known that the floor mat had a low coefficient of friction and that it was inherently slippery is without merit. "Constructive notice will not be imputed where the defect is latent, i.e., where, as here, the defect is of such a nature that it would not be discoverable even upon a reasonable [*3]inspection" (Ferris v County of Suffolk, 174 AD2d 70, 76 [1992]). If a defect could not have been discovered by a layman, even by a reasonable inspection, it is considered a latent defect (see Rapino v City of New York, AD2d 470 [2002]). In this case, plaintiff has offered no evidence that the defect in the floor mat was so visible and apparent that defendants should have appreciated the danger it posed. Plaintiff relies upon the affidavit of an engineer who opined that only a modest amount of force would be necessary to displace the mat, given the low coefficient of friction of the hallway floor and the nature of the composite material of which the mat was made. Even assuming that defendants can be charged with knowledge of the mat's dangerous properties, since plaintiff's expert did not actually examine the floor mat, his observations are speculative and conclusory, incapable of forming an evidentiary basis upon which plaintiff can create a triable issue of fact (see Campanella v Marstan, 280 AD2d 418 [2001]).
Contrary to plaintiff's contention, the liability of Clinton, the landlord, cannot be premised exclusively on its breach of the general duty of care pursuant to Multiple Dwelling Law § 78 (1). Even assuming such a breach, in order to recover, plaintiff would still have had to prove all of the elements of common-law negligence. (see Leon v Mendonca, 7 AD3d 345 [2004]; Aviles v Crystal Management, Inc., 253 AD2d 607 [1998], lv. denied 93 NY2d 804 [1999]). As noted, plaintiff has not raised a triable issue of fact as to whether defendants had actual or constructive notice of the alleged hazard. Accordingly, the motion and cross motion are granted and the complaint and all cross claims herein are dismissed.
The foregoing constitutes the decision, order and judgment of this court. E N T E R,
J. S. C.
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