Pollack v Ayres Assoc.

[*1] Pollack v Ayres Assoc. 2006 NY Slip Op 52527(U) [14 Misc 3d 1213(A)] Decided on September 28, 2006 Supreme Court, Kings County Balter, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2006
Supreme Court, Kings County

Sarah Pollack, Plaintiff,

against

Ayres Associates, Defendant.



14996/04

Bruce M. Balter, J.

Upon the foregoing papers in this action by plaintiff Sarah Pollack (plaintiff) to recover damages for personal injuries allegedly sustained by her, defendants Ayres Associates (Ayres) and Kings Plaza Community Center, Ltd. (Kings) move for an order amending the caption and complaint to reflect the addition of Kings as a defendant and, upon such amendment, granting summary judgment dismissing the complaint as against both Ayres and Kings.

Ayres is the owner of a building located at 2233 Flatbush Avenue, in Brooklyn, New York. Pursuant to a written lease, the basement of the building is occupied by Kings as a bingo hall, and Kings is responsible for the interior stairway leading to the bingo hall. At approximately 11:00 A.M. on December 10, 2003, plaintiff was on her way to attend a bingo game at the bingo hall. There was allegedly snow covering the sidewalk in front of the building, and plaintiff's husband dropped plaintiff off by car in front of the building. Plaintiff walked past the front door, and approached the stairway leading to the bingo hall. There was no one else descending the steps ahead of plaintiff because the other bingo attendees were already there. Before starting to walk down the staircase, plaintiff noticed that there was water on the steps. Plaintiff attributed this water to having been left there by the wet shoes of the bingo attendees who had walked down the steps before her to get to the bingo game. While descending the stairs, plaintiff slipped on the fourth or fifth step from the top and she fell on her left side, sustaining injuries to her left hip.

Consequently, on May 11, 2004, plaintiff filed this action as against Ayres. In July 2005, plaintiff moved for leave to amend the complaint to add Kings as a necessary defendant. By stipulation dated September 13, 2005, plaintiff's motion was withdrawn on consent because Kings and Ayres agreed to such amendment and interposed an answer to plaintiff's amended complaint. Plaintiff, however, failed to file the supplemental summons and amended complaint so that the caption of this action did not reflect the addition of Kings in this action. Thus, Ayres [*2]and Kings, in their instant motion, seek to correct this error in the caption. As there is no opposition to this correction to reflect plaintiff's amendment of the complaint to add Kings, a granting of the motion by Ayres and Kings, insofar as it seeks such amendment, is warranted (see CPLR 3025 [b]).

Plaintiff's action as against Ayres and Kings alleges that Ayres and Kings were negligent with respect to the wet condition of the stairway, and seeks damages for the injuries sustained by her due to her fall down the steps. Both plaintiff and Robert Aiello, who is a a partner of Ayres, have been deposed.

In addressing the instant motion, the court notes that "[a]n out-of-possession landlord is not liable for injuries sustained by third parties on the leased premises after possession has been transferred to the tenant, unless the landlord has covenanted to maintain or repair the premises" (Ortiz v RVC Realty Co., 253 AD2d 802, 803 [1998]). Moreover, in order to prove a prima facie case of negligence in a slip-and-fall case against a defendant, "a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition" (Bradish v Tank Tech Corp., 216 AD2d 505, 506 [1995]; see also Kotsakos v Tsirigotis, 28 AD3d 426, 426 [2006]; Picerno v New York City Tr. Auth., 4 AD3d 349, 350 [2004]; Kalogerides v Citibank, N.A., 233 AD2d 298, 298 [1996]; Eddy v Tops Friendly Markets, 91 AD2d 1203, 1203 [1983], affd 59 NY2d 692 [1983]). "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" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see also Welles v New York City Hous. Auth., 284 AD2d 327, 328 [2001]; Bernard v Waldbaum, Inc., 232 AD2d 596, 597 [1996]; Masotti v Waldbaums Supermarket, 227 AD2d 532, 533 [1996]; Kraemer v K-Mart Corp., 226 AD2d 590, 590 [1996]).

With respect to Ayres, the evidence is undisputed that Ayres was an out-of-possession landlord with no contractual responsibility to maintain the premises. It is also undisputed that Ayres did not subsequently undertake any maintenance or repair of the leased premises. Plaintiff, in opposition to the motion, merely asserts that although Ayres is an out-of-possession owner, it had the right of re-entry under the lease to inspect the premises and make repairs. She argues that Ayres can be charged with notice based upon this right of re-entry.

Plaintiff's argument is unavailing. "In the absence of a duty, imposed by statute, a landlord's mere reservation of a right to enter a leased premises to make repairs is insufficient to give rise to liability for a subsequently-arising dangerous condition" (Ortiz, 253 AD2d at 803; see also Popovskaya v Kings Delight, 288 AD2d 283, 283 [2001]). Furthermore, there is no evidence to establish that Ayres created or had actual or constructive notice of any water condition on the stairway, which, according to plaintiff's own deposition testimony, resulted from the tracking of water from the wet shoes of other attendees of the bingo hall just moments prior to her use of the stairway (see Hackbarth v McDonalds Corp., 31 AD3d 498, 499 [2006]; Stancil v Supermarkets General, 16 AD3d 402, 402 [2005]; Murphy v Lawrence Towers Apartments, LLC, 15 AD3d 371, 371 [2005]; Welles, 284 AD2d at 328; Goldman v Waldbaum, Inc., 248 AD2d 436, 437 [1998]; Kalogerides, 233 AD2d at 298; Masotti, 227 AD2d at 533).

Plaintiff also relies upon Administrative Code of the City of New York § 7-210, under which a real property owner is liable for the failure to maintain a sidewalk in a reasonably safe condition, including the negligent failure to remove snow and ice from the sidewalk. Plaintiff [*3]submits local climatological data, which shows that there was no snowfall on December 10, 2003, but that two inches of snow remained on the ground on that day from prior snowfalls on December 5th and 6th of 2003. Plaintiff argues that the snowfalls five and six days prior to her accident could support a finding that she fell because of a pre-existing snow and ice condition outdoors. Specifically, plaintiff contends that Ayres and Kings allowed this melting snow to accumulate on the sidewalk outside the building and to, thereafter, travel untreated on the shoes of people through the doorway of the building, which had no mats, onto the staircase.

Plaintiff's argument must be rejected. Administrative Code § 7-210 is wholly inapplicable to this case as it pertains only to a landlord's liability for a sidewalk in front of its premises. Here, plaintiff's accident did not occur on a sidewalk, but on an interior stairway. Any alleged negligent failure to remove snow existing on the sidewalk was not the specific condition that resulted in plaintiff's injuries (see DiGrazia v Lemmon, 28 AD3d 926, 927 [2006]; Welles, 284 AD2d at 328; Bernard, 232 AD2d at 597). Moreover, plaintiff's claim that the bingo hall attendees tracked in the water onto the staircase from their feet due to Ayres' failure to clean the outside sidewalk in front of its premises, as opposed to a different area of, or a different sidewalk, or the street, is far too speculative to defeat the motion insofar as it seeks summary judgment dismissing plaintiff's complaint as against Ayres (see DiGrazia, 28 AD3d at 928; Welles, 284 AD2d at 328).

With respect to Kings, plaintiff argues that the lease obligated Kings, as the tenant, to maintain the premises, and that Kings breached its common-law duty to her to maintain it. Such argument is rejected. It is true, as plaintiff contends, that the owner or operator of premises " must take reasonable care that [its patrons] shall not be exposed to danger of injury through conditions in the [premises] or at the entrance which [it] invites the public to use'" (Hackbarth, 31 AD3d at 498, quoting Miller v Gimbel Bros., 262 NY 107, 108 [1933]). "However, the business owner or operator is not obligated to provide a constant remedy to the problem of water or snow being tracked into the [premises] caused by inclement weather" (Hackbarth, 31 AD3d at 498-499; see also Miller, 262 NY at 108; Murphy, 15 AD3d at 371; Ford v Citibank, N.A., 11 AD3d 508, 509 [2004]; Yearwood v Cushman & Wakefield, 294 AD2d 568, 568-569 [2002]). As noted above, to impose liability on an owner or operator, a triable issue of fact must be raised as to whether it either created the wet condition or had actual or constructive notice thereof (see Hackbarth, 31 AD3d at 499; Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d 511, 512 [2005]; Murphy, 15 AD3d at 371-372; Ford, 11 AD3d at 508-509; Bluman v Freeport Union Free School Dist., 5 AD3d 341, 342 [2004]; Izrailova v Rego Realty, LLC., 309 AD2d 902, 902 [2003]; Yearwood, 294 AD2d at 568-569).

In the case at bar, there is no evidence whatsoever to establish that Kings created the allegedly defective condition which caused plaintiff to fall (see Hackbarth, 31 AD3d at 498; Stancil, 16 AD3d at 402; Murphy, 15 AD3d at 371; Ford, 11 AD3d at 509; Yearwood, 294 AD2d at 568; Goldman, 248 AD2d at 437; Kalogerides, 233 AD2d at 298). Rather, as previously discussed, plaintiff testified at her deposition that the bingo attendees had caused the wet condition by tracking the water from outside and walking down the steps with their wet shoes, causing it to be on the step upon which she fell (see Hackbarth, 31 AD3d at 498; Ford,11 AD3d at 509;Yearwood, 294 AD2d at 568).

Plaintiff's contention that Kings created the hazardous condition by failing to put down mats is insufficient to defeat summary judgment. "A property owner [or tenant] is not obligated [*4]to cover all of its floors with mats or to continuously mop up all moisture resulting from tracked-in precipitation" (Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d 511, 512 [2005]; see also Izrailova, 309 AD2d at 902).

With respect to notice, plaintiff testified at her deposition that she never complained to anybody about snow in front of the building, and that she never noticed water on the steps before the day she fell. There is no showing that Kings had actual notice of the wet condition since it has not been shown that complaints were made to anyone about the water on the steps (see Yearwood, 294 AD2d at 569). There is also no showing as to how long the wet condition existed on the steps. There is no evidence whatsoever that the water had been tracked into the building days or hours earlier and remained on the stairway (see Hackbarth, 31 AD3d at 498; Di Grazia, 28 AD3d at 927; Mokszki v Pratt, 13 AD3d 709, 710 [2004]). Rather, plaintiff testified at her deposition that the bingo game started at 11:00 A.M. and that the people who arrived shortly ahead of her had just tracked the water onto the steps as they walked down the stairs to attend the game.

Thus, there is a complete absence of any evidentiary facts tending to show that the hazard was present for any length of time or was an ongoing and recurring one that was routinely left unaddressed (see Murphy, 15 AD3d at 372; Yearwood, 294 AD2d at 568-569). Therefore, any conclusion that the water condition existed for a sufficient length of time to permit Kings to discover and remedy it prior to plaintiff's accident would be pure speculation (see Gordon, 67 NY2d at 838; Spooner v New York City Tr. Auth., 298 AD2d 575, 575 [2002]; Masotti, 227 AD2d at 533; Kraemer, 226 AD2d at 591). Due to this absence of proof as to how long this specific wet condition existed prior to plaintiff's fall, there is no evidence to permit an inference that Kings had constructive notice of the condition (see Ford, 11 AD3d at 509; Yearwood, 294 AD2d at 568; Anderson v Central Valley Realty Co., 300 AD2d 422, 423 [2002]; Kershner v Pathmark Stores, 280 AD2d 583, 584 [2001]).

Plaintiff, in opposing the motion, further relies upon a warning sign that was on the wall facing the stairway, which stated: "Please use caution when entering building! You are at your own risk!" She claims that this shows that Kings knew that steps could be a hazardous condition if not maintained properly. Such argument is without merit. This general warning, which merely alerts bingo attendees to be cautious, does not show that Kings had any actual or constructive notice of any hazardous condition existing on the stairway (see Bernard, 232 AD2d at 597).

In addition, plaintiff does not deny that the alleged wet condition was open and obvious. As noted above, plaintiff testified at her deposition that she readily observed that the steps had gotten wet from the other bingo attendees proceeding downstairs just prior to her arrival. Thus, such an observable condition, which was readily apparent by the use of one's eyes, could not have posed an unreasonable risk of injury to plaintiff (see DeMarrais v Swift, 283 AD2d 540, 541 [2001]; Cortese v Paris Maintenance, 255 AD2d 354, 354 [1998]).

Therefore, inasmuch as Ayres and Kings have made a prima facie showing of their entitlement to summary judgment by presenting sufficient evidence to show that they neither created nor had actual or constructive notice of the allegedly dangerous condition created by snow being tracked onto the stairway leading to the bingo hall and since, in opposition, plaintiff has failed to raise any triable issue of fact in this regard, the motion by Ayres and Kings must be [*5]granted (see Hackbarth, 31 AD3d at 499; Curtis, 23 AD3d at 512; Murphy, 15 AD3d at 371-372; Ford, 11 AD3d at 508-509; Bluman, 5 AD3d at 342; Yearwood, 294 AD2d at 568-569).

Accordingly, the motion by Ayres and Kings for an order amending the caption and complaint to reflect the addition of Kings as a defendant, and, upon such amendment, granting summary judgment dismissing the complaint as against Ayres and Kings is granted.

This constitutes the decision, order, and judgment of the court.

ENTER,

J.S.C.