Kassirer v RCPI Holdco, LLC

[*1] Kassirer v RCPI Holdco, LLC 2007 NY Slip Op 52235(U) [17 Misc 3d 1132(A)] Decided on November 7, 2007 Supreme Court, New York County Stallman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 7, 2007
Supreme Court, New York County

Sidney Kassirer and Chany Kassirer, Plaintiffs,

against

RCPI Holdco, LLC, RCPI Trust, RCPI Landmark Properties, LLC, Tishman Speyer Properties L.P., Defendants



114429/03



For Plaintiffs:

Sanocki, Newman & Turret, LLP

By: Maria Gagasoules, Esq.

225 Broadway, 8th Floor

New York, New York 10007

(212) 962-1190

For Defendants:

Jeffrey Samel & Partners, Esqs.

By: Susan D. Smodish, Esq. and

David Samel, Esq.

150 Broadway, 20th Floor

New York, New York 10038

(212) 587-9690

Michael D. Stallman, J.

In this personal injury action, plaintiffs allege that plaintiff Sidney Kassirer (Kassirer) fell and was injured inside the lobby of 630 Fifth Avenue (the premises) in Rockefeller Center, on a rainy December 20, 2002. Defendants move for summary judgment dismissing the complaint (CPLR 3212), on the grounds that they did not have notice of a dangerous condition prior to Kassirer's fall and did not breach any duty to plaintiffs.

BACKGROUND

According to his deposition (EBT) testimony, Kassirer, on his way home on a Friday afternoon, after work, allegedly slipped and fell after stepping off of a mat inside the premises (Smodish Aff., Exh. I, at 22, 24) and onto what plaintiffs' expert witness describes as a smooth, wet, [*2]and slippery terrazzo floor. Kassirer testified that "it was raining cats and dogs, sheets of water" when he entered the premises, on his way toward an indoor escalator which led down to the subway (id. at 17). He further testified that immediately ahead of him were many others who had also entered the premises (id. at 28).

Prior to his fall, Kassirer testified that did not notice anything on the floor, but that immediately after, he "noticed dampness, wet floor, yes" (Smodish Aff., Exh. I, at 33-35). When asked to describe the dampness, Kassirer responded, "[w]hen I fell, I noticed dampness. There [was] moisture on the floor. I also noticed I was wet as well" (id. at 35). When asked whether he would describe the moisture that he saw on the floor following his fall as puddles or drops, Kassirer responded that he would best describe it as "[l]ike water on any marble or stone floor. It is not a puddle; it is streaked" (ibid.). Kassirer could not tell if it was one streak of water, or more than one steak (ibid.). When asked to describe where, after the fall, he was wet, Kassirer responded "(m)y pants, the left side of my body. You mean I don't know if that was you know, I was damp all over" (id. at 34). Kassirer testified that the dampness on his pants was more on the left side, and that he was wearing a raincoat when he fell, which he assumed was wet before he entered the premises, but he could not say "exactly how" (ibid.). Kassirer also remembered that he had rolled up his umbrella while going through the revolving door at the entrance to the building (id. at 23).

There is no dispute that non-party American Building Management Co. of New York (ABM), which had contracted with defendant and premises owner, RCPI Landmark Properties, LLC (Landmark) to provide certain maintenance services at the premises, had placed rain mats at the entrances of the premises (see Pl. Opp. Memo. of Law, at 3). Although it is unclear how long the mats were, it is undisputed that the mats did not cover the entire lobby floor, and stopped short of the escalators, leaving an area of uncovered terrazzo floor between the end of the mats and the escalator.

Julio Rios and Patrick Pesce, two employees of Landmark's agent, defendant Tishman Speyer Properties, LP, came to Kassirer's aid. According to plaintiffs, Rios and Pesce arrived at the accident scene separately, but each arrived no later than 10 minutes after Kassirer's fall.

Defendants submit Rios's affidavit in which he states that the floor looked dry where he found Kassirer, that rain mats were in place and that he saw a "caution" sign posted.

They also submit the EBT transcript of Pesce, who testified that he was, at the time of the incident, a "protection supervisor," whose duties included responding to accidents at the premises (Gagasoules Aff., Exh. E, at 5-6). Pesce further testified that he was not aware of any prior complaints regarding the same location (id. at 6), that the carpets were in place, that there were caution signs in the lobby of the premises, and that when he arrived at the accident scene, he did not see wetness on the floor on the area near Kassirer (id. at 19-20, 24, 32). Pesce completed an accident report describing the weather conditions as raining, and the floor as dry (id. at 12, 28; Exh. F).

DISCUSSION

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Where a defendant establishes a prima facie entitlement to such relief as a matter of law, the burden [*3]shifts to the plaintiff to raise a triable issue of fact (Alvarez v Prospect Hosp.,

68 NY2d 320, 324 [1986]). Evidence submitted on a summary judgment motion must be liberally construed in a light most favorable to the non-moving party (Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]).

To meet their summary judgment burden, defendants provide, in addition to the accident report and the deposition transcripts of Kassirer and Pesce, and the Rios affidavit, a weather report evidencing the rainy conditions about which Kassirer testified. Defendants contend that there is no evidence that anyone employed by them created or had actual or constructive notice of a dangerous condition which allegedly caused Kassirer to slip and fall, and that the weather conditions gave rise only to a general awareness on the part of defendants that a condition might occur, from which notice will not be imputed. Defendants contend that the evidence also demonstrates that they placed mats and caution signs in the premises, thereby fulfilling any duty they had to plaintiffs during a rain storm. Indeed, Kassirer testified that he walked on a mat before stepping off and falling.

In opposition, plaintiffs point primarily to the evidence discussed above, and submit an engineer's affidavit to support their notice and negligence theories. They also argue that defendants have not met their summary judgment burden because they have provided only an attorney's affidavit to demonstrate lack of notice.[FN1]

Plaintiffs' expert opines that, based on his review of the evidence, the floor was "considerably" wet prior to Kassirer's slip and fall, "since it resulted in Mr. KASSIRER'S clothing becoming wet, and Mr. KASSIRER noticed that the floor was wet after his fall" (Fein Aff., at 4). Plaintiffs' expert thus concludes that there was therefore a visible accumulation of water, "which had to have come into existence and remained there over a significant period of time so as to provide the porters and/or other individuals responsible for inspecting and mopping rain spillages with notice of this dangerous and hazardous condition" (id. at 4-5). Plaintiffs' expert further opines that the defendants were negligent in failing to afford pedestrians a safe walkway from the revolving door entrance of the premises to the escalator (id.), and in failing to place the wet floor signs in a conspicuous place (id. at 3). According to plaintiffs' expert, providing a carpeted passage for the entire length of the span between the revolving door of the premises and the escalator could have prevented Kassirer's fall because he would not have been forced to step onto the slippery terrazzo floor (see id. at 6).

"It is well established that owners and lessees have a duty to maintain their property in a reasonably safe condition under the existing circumstances" (Waiters v Northern Trust Co. of New York, 29 AD3d 325, 326 [1st Dept 2006]). Also well established is that "[i]n order to recover damages for a breach of this duty, a plaintiff must establish that the defendant created, or had actual or constructive notice of the dangerous condition that precipitated the injury" (ibid.; see Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994] ["(t)he evidence does not establish that defendants had either actual or constructive notice of the hazardous condition that caused plaintiff to slip and [*4]fall, and accordingly the complaint should be dismissed"]). "To constitute constructive notice of a dangerous condition, the defect or condition must be visible and apparent and . . . must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it'" (see Gibbs v Port Authority of New York, 17 AD3d 252 [1st Dept 2005], quoting Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).

There is no evidence on this record that would permit a finder of fact to infer that defendants created or had actual or constructive notice of a dangerous condition. There is no evidence demonstrating how long the allegedly slippery condition existed on the floor where Kassirer fell (see Gibbs, 17 AD3d at 255 ["(g)iven the total lack of evidence on the issue of the length of time the [condition] was present,' there is no evidence from which a jury could infer that such condition existed for a sufficient period to allow" defendants to discover and remedy it (citation omitted); Rouse v Lex Real Assoc., 16 AD3d 273 [1st Dept 2005] ["(t)here was no evidence that defendants created a dangerous condition or had actual or constructive notice of a hazard that could have been prevented . . ."]; Garcia v Delgado Travel Agency, 4 AD3d 204 [1st Dept 2004] ["(v)iewing this matter in a light most favorable to plaintiff, there is no evidence that defendants either created the wet condition in the lobby or had notice of a hazard that could have been prevented by the exercise of reasonable care"]; see Dombrower v Maharia Realty Corp., 296 AD2d 353 [1st Dept 2002] [reversing denial of summary judgment in favor of defendant where "plaintiffs offered no testimony disclosing how long the allegedly slippery condition existed on the floor where the injured plaintiff fell" and plaintiffs' claim that defendant created the unidentified condition on which the injured plaintiff slipped was unsupported by any evidence in the record]); Keum Choi v Olympia & York Water St. Co., 278 AD2d 106 [1st Dept 2000] ["(e)ven were we to assume that water was visible, despite plaintiff's inability to recall seeing water, there is no evidence from which a jury could reasonably conclude that such condition existed for a sufficient period of time to allow defendants to have discovered and remedied it"]) .

Kassirer testified that he and others had just entered the premises from the pouring rain, and that he saw nothing on the floor before he fell. In light of this testimony, plaintiffs' contention that Kassirer's post-accident observation of water on the floor or his noticing then that his clothes were more wet on the side on which he fell demonstrates a visible accumulation of water prior to his fall, or the length of time that any such accumulation existed, is speculative. Any contention that the streaked water that Kassirer allegedly saw on the floor after his fall was caused by something other than Kassirer's own wet shoes or clothing, or those of the numerous pedestrians he testified were walking ahead of him, is also speculative (see Keum Choi, 278 AD2d at 107 ["(i)t is, for example, quite possible that any water on the floor had been tracked into the building by individuals immediately preceding plaintiff"]), and thus insufficient to defeat summary judgment.[FN2] There is [*5]simply no evidence to demonstrate "how long the water was on the floor" (Gibbs, 17 AD3d at 255), and "[i]n the absence of proof as to how long a condition existed, no inference can be drawn that defendants had constructive notice of a dangerously wet floor" (Garcia, 4 AD3d at 204; see Keum Choi, 278 AD2d at 106-107 ["(e)ven were we to assume that water was visible, despite plaintiff's inability to recall seeing water, there is no evidence from which a jury could reasonably conclude that such condition existed for a sufficient period of time to allow defendants to have discovered and remedied it"]). Plaintiffs' case is not saved by the conclusory affidavit of their expert.

Plaintiffs rely on Collins v Mayfair Super Mkts., Inc. (13 AD3d 330 [2d Dept 2004]), to support their contention that defendants failed to meet their initial burden because they did not produce testimony or a sworn affidavit to demonstrate that the floor was inspected and dry prior to the incident. Collins, however, concerns an alleged fall on a slippery wax substance on a supermarket floor. Imposing a burden on defendants to demonstrate an inspected, dry floor during a rainstorm in order to establish the lack of constructive notice is incompatible with established precedent concerning the scope of a defendant's duty during such a storm, which does not entail providing a "constant remedy to the problem of water being tracked into a building" (Gibbs, 17 AD3d at 255; Yearwood v Cushman & Wakefield, 294 AD2d 568 [2d Dept 2002]; Keum Choi, 278 AD2d at 107), or placing mats over the entire surface area of the floor (Dubensky v 2900 Westchester Co., LLC, 27 AD3d 514 [2d Dept 2006]; Ford v Citibank, N.A., 11 AD3d 508 [2d Dept 2004]; Garcia, 4 AD3d at 204 ["[t]he fact that it was raining and water was being tracked in does not constitute notice of a dangerous situation warranting more than laying floor mats. Indeed, defendants were under no obligation to cover the entire floor with mats and to continuously mop up all tracked-in water" (citations omitted)]; see Solazzo v New York City Transit Authority, 21 AD3d 735 [1st Dept], affd 6 NY3d 734 [2005]; Kovelsky v City Univ. of NY, 221 AD2d 234, 235 [1st Dept 1995]). Furthermore, any general awareness that defendants may have had that water might be tracked into the premises during a storm does not establish constructive notice of the condition alleged here (see Piacquadio, 84 NY2d at 969; Yearwood, 294 AD2d at 569), or give rise to a duty to do any more than they did here.

Plaintiffs also cite to Lefkowitz v 144 West Corp. (277 App Div 1143 [2d Dept 1950]), stating that their "expert agrees with the defendant in Lefkowitz" as he opines:

"It is also my opinion with a reasonable degree of certainty that when smooth and glossy crystallized terrazzo tile is wet, it becomes a slipping hazard. Accordingly, good safety practice mandates that mats be employed to overcome such a hazardous condition.

Safe practice requires that in high traffic areas with slippery floor such as here, the rain mats should have extended from the doorway entrance to the escalator platform in order to provide a safe walkway for pedestrians. The defendants here however, failed to provide a safe passage for pedestrian[s] with the use of rain mats' and/or other carpeting."

(Fein Aff., at 5).

In Lefkowitz (277 App Div at 1144), the Court found that:

"[t]here was proof from which the jury could find that there was an excess amount of water, which had existed for at least an hour before the accident and that defendant's employees had not complied with defendant's directions to pull the rubber mat (normally lying some distance from the front door) up to the saddle of the entrance door whenever it rained, and to place a rubber runner [*6]under that mat to the front of the elevator."

Plaintiffs point to no such similar circumstances here. In the absence of actual or constructive notice, plaintiffs' expert's unsupported conclusion that the smooth and glossy crystallized terrazzo tile was a slipping hazard when wet is unpersuasive (see Sarmiento v C & E Associates, 40 AD3d 524, 527 [1st Dept 2007] ["(n)or does the expert's additional allegation that the marble stairs were rendered increasingly hazardous by the presence of water afford a basis for liability, in the absence of a showing that defendant had actual or constructive notice of the resulting condition"]; Waiters, 29 AD3d at 327).

CONCLUSION

Accordingly, it is

ORDERED that defendants' motion for summary judgment is granted and the complaint is dismissed; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

This decision constitutes the order of the Court.

Dated: November 7, 2007ENTER:

New York, New York

s/

____________________________________

J.S.C. Footnotes

Footnote 1: In addition, plaintiffs submit copies of pages of "Day Routine Sheets" for the employees employed by ABM, and ABM's maintenance contract with Landmark, but point to nothing in them that supports their opposition. They also submit a physician's report, some of Mr. Kassirer's medical records, the EBT transcript of Chany Kassirer, and a brochure from the defendants' insurance company, entitled "Slips, Trips and Falls: Risk Control."

Footnote 2: Defendants appear to challenge the credibility of Kassirer's testimony that the floor was wet after he fell (see Def. Reply Aff., ¶ 10). It is well established, however, that on a motion for summary judgment a court does not evaluate the parties' credibility to decide whose version of the facts is true (Gurfein Bros. v Hanover Ins. Co., 248 AD2d 227, 229 [1st Dept 1998]). Thus, the Court accepts as true Kassirer's testimony that it was raining hard when he entered the premises, that there was pedestrian traffic ahead of him, and that he did not see water on the floor before he fell, but did after.