Canturencia v Lower E. Side I Assoc., LP

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Canturencia v Lower E. Side I Assoc., LP 2013 NY Slip Op 30722(U) April 3, 2013 Supreme Court, New York County Docket Number: 100180/11 Judge: Joan M. Kenney Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED 0N411012013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART e s Index Number : 100180/2011 CANTURENCIA, VERONICA I VS LOWER EAST SIDE I ASSOClATES MOTION DATE Sequence Number : 003 MOTIONSEQ. NO. 0 ' 3 SUMMARY JUDGMENT The followlng papers, numbered 1 to Notice of Motion/Order to Show Cause -Affidavits Aniwering Affidavits - Exhibits - Exhib Replylng Affidavits Upon the foregoing papers, It Is ordered that this motion i myoRK w couNp/cLERlm.~~ >,._ .......... -..*;=a J.S.C. ..................................................................... 2. CHECK AS APPROPRIATE: .............. MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 1. CHECK ONE: JOAN M. KENNN JSC, x c CASE DISPOSED ] GRANTED SEllLE ORDER DO NOT POST --FINAL DENIED DISPOSITION GRANTED IN PART OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0REFERENCE [* 2] Recitation, as required by CPLR 22 19(a), of the papers considered in review of this motion to dismiss. Papers Notice of Motion, Affirmation, and Exhibits Opposition Affirmation, and Exhibits Reply Affirmation, Exhibits 1-12 13-15 16-17 7 0 2013 In this personal injury action, 3 - < Order, pursuant to CPLR Q 3212, dismissing the complaint. Factual Backmound On October 27, 20 10, at approximately 10 a.m., plaintiff left her ' apartment located on the 5 floor of 6 10 East 1l* St, New York, NY (the premises) to take her son to an appointment and as plaintiff descended down the staircase, she slipped and fell between the 2"dfloor and the 1st floor, falling down the remaining stairs to the lobby below (the accident). Plaintiff alleges that after the accident, her pants, the stairs, and the landing were wet. Plaintiff stzted at her examination before trial (EBT) that she had last walked over the location of the accident the afternoon prior to the date of the accident, (Plaintiff's EBT, pg. 96, lines 11-22). Plaintiff also stated that when she looked up after the accident, the landing was "wet, like somebody cleaned up," (Plaintiff's EBT, pg. 85, lines 18-21; pg. 88, lines 20-22). 0 [* 3] Mark Guzman (Guzman) was the superintendent of the premises owned, operated, and managed by defendant. Guman stated at his EBT that at the time of the accident, the premises employed a porter who was responsible for mopping the premises. (Guzman EBT, pg. 14, lines 16- 2 1;pg. 15, lines 4-7; pg. 28, lines 14-18). Guzman was the porter s immediate supervisor,and would inspect the premises once per week on average. (Guzman EBT, pg. 30, lines 10-24). Guzman further testified that the porter would be at the premises from 8 a.m. until 5 p.m. five days per week. (Guman EBT, pg. 15, lines 16-18). Guzman did not recall whether or not the porter was at the premises on the date of the accident. (GuzmanEBT, pg. 33, lines 5-9). Arguments Defendant contends that this action must be dismissed because defendant did not create and/or have notice of any alleged dangerous condition that allegedly caused plaintiffs accident. Plaintiff argues that defendant failed to present a prima facie entitlement to the relief sought and questions of fact preclude the granting of summary judgment in defendant s favor. Discussion Pursuantto CPLR 3212(b), a motion for summaryjudgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action of defense has no merit, The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficientlyto warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision c of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall 2 [* 4] appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion. The rule governing summary judgment is well established: 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 Universit4,Medical Center, 64 NY2d 85 1 [19&5];Tortorello v Carlin, 260 Ad2d 201 [lst Dept 19991). In order to establish a prima facie case of negligence in a trip and fall action, a plaintiff must demonstrate that a defendant either created a dangerous condition, or had actual and/or constructive notice of the defective condition alleged (see Judith D. Arnold v New York City Housing Authority, 296 AD2d 355 [lst Dept 20021). A genuine issue of material fact exists when defendant fails to establish that it did not have actual or constructive notice of a watery or hazardous condition (Aviles v 2333 1 Corp., 66 AD3d 432 [ 1 Dept. 20091; Baez-Sharp v New York City Tr. Auth., 38 AD3d 229 [ 1 Dept. 20071). In Baez, the Court stated that defendant failed in its initial burden, as movant, to establish, as a matter of law, that it did not create and did not have actual or constructive notice of the watery and hazardous condition. 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 (see Strowman v Great Atl. & Pac. Tea Co., Inc., 252 AD2d 384 [19983). Here, movant fails to eliminate all material issues of fact. Plaintiff maintains that she slipped on the landing because of a wet/dangerous condition. The plaintiff had last been by the location of the accident the day prior. Defendant s superintendent, Guzrnan, could not recall if he inspected the 3 [* 5] location of the accident, or the premises in general, on the day of the accident. Although Guzman claimed that it was the porter's duty to mop the premises, and that the porter was hired to be at the premises from 9 a.m. to 5 p.m. on weekdays,the porter was not deposed and thus defendant left open the possibility that a wetldangerous condition could have been cured by defendant andor that defendant had constructive notice of the alleged dangerous condition. Summarily, Gumm has no personal knowledge of the facts attested to by plaintiff because he was not there, could not recall if he was even present at the premises on the date of the accident, and could not recall if the porter was scheduled to be at the premises fulfilling his duties of mopping and cleaning. As defendant has not made out a prima facie showing of entitlement to summary judgment as a matter of law, plaintiff is under no obligation to come forward with evidentiary proof creating a triable issue of fact. (See Marie Christiana v Joyce Inntemational Inc., 198 AD2d 690, 691 [3rd Dept. 19931).A movant's failure to sufficientlydemonstrateits right to summary judgment requires a denial of the motion regardless of the sufficiency, or lack thereof, of the opposing papers. (Winegradv New Yurk Univ. Med. Center, 64 NY2d 85 1;Zuckerman v City of New York, 49 NY2d 557; Friends ofAnimals v Associated Fur Mfis., NY2d 1065; Cugini v System Lumber Co., 111 46 AD2d I14 [lst Dept, 19851). Accordingly, it is hereby Dated: 4

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