Morales v New York City Hous. Auth.

[*1] Morales v New York City Hous. Auth. 2013 NY Slip Op 51724(U) Decided on October 21, 2013 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 21, 2013
Supreme Court, Kings County

Jose Morales, Plaintiff,

against

New York City Housing Authority, Eleanor Roosevelt I, Eleanor Roosevelt II, and City of New York, Defendants.



21593/10



Plaintiff Attorney: Terilli & Tintle, PLLC, 225 Broadway, Suite 2812, New York, NY 10007

Defendant Attorney: Patrick Neglia, Esq., Cullen and Dykman, LLP, 44 Wall Street, New York, NY 10005

David I. Schmidt, J.

The following papers numbered 1 to 6 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-3

Opposing Affidavits (Affirmations)4-5

Reply Affidavits (Affirmations)6

Affidavit (Affirmation)

Other Papers Memorandum of Law

Upon the foregoing papers, defendants New York City Housing Authority, Eleanor [*2]Roosevelt I and Eleanor Roosevelt II (collectively, the NYCHA defendants) move for an order, pursuant to CPLR 3212, granting summary judgment dismissing this action as against them.

Background

(1)

The NYCHA defendants owned and operated a residential building located at 953 Dekalb Avenue in Brooklyn (the Building). Jose Morales (plaintiff) was descending the stairway between the 10th and 9th floors of the Building, at approximately 4:25 a.m. on August 28, 2009, when he slipped, fell down the stairs and sustained personal injury (the Accident).[FN1]

Plaintiff filed a notice of claim dated October 1, 2009 and commenced this action for premises liability on August 31, 2010. Plaintiff alleged that the NYCHA defendants negligently permitted a liquid or a slippery substance to exist in the stairwell and thereby caused the Accident. He further alleged that the NYCHA defendants had actual knowledge of the dangerous condition and failed to warn him of it or remedy it. The Honorable Sylvia G. Ash granted summary judgment to defendant City of New York in a March 23, 2011 short form order.

(2)

The NYCHA defendants now move, pursuant to CPLR 3212, for summary judgment dismissing the action as against them. They primarily argue that they lacked both actual and constructive notice of the liquid or slippery condition that plaintiff alleges caused the Accident. They urge that neither plaintiff nor anyone else complained about the condition before the Accident. Plaintiff makes no showing, the NYCHA defendants contend, of how long the liquid may have existed in the stairwell before the Accident.

The NYCHA defendants explain that one of the Building's caretakers, Richard Strawder (Strawder), performed routine maintenance, including inspection and cleaning of the Building's stairwells, the day before the Accident. They stress that neither Strawder nor any other employee received complaints regarding a liquid or a slippery condition in the stairwell before the Accident. The NYCHA defendants argue that a general awareness that a "liquid condition might accumulate in the subject stairwell" would not suffice to demonstrate notice of the specific condition that existed when the Accident occurred.

The NYCHA defendants also contend that plaintiff's inability to identify the liquid that purportedly caused the Accident renders any allegation of proximate causation speculative and mandates dismissing the action. They emphasize that plaintiff, at a January 12, 2010 General Municipal Law § 50-h hearing (the 50-h hearing), stated that he [*3]did not know what type of liquid caused the accident and that he never saw it. Accordingly, they urge that plaintiff's action relies on improper speculation concerning which of various possible causes led to the Accident.

The NYCHA defendants support their motion with the affidavit of Edward Burch (Burch), who states that he acts as the resident building superintendent for the Emergency Services Department. Burch explains that his department operates a 24-hour telephone number that residents may call to report dangerous conditions. Burch recounts that a search of the records for August 27 and 28, 2009 revealed no complaints concerning a liquid or a slippery condition in the stairwell where the Accident occurred.

(3)

Plaintiff argues, in opposition, that the NYCHA defendants knew about a recurring problem of urine and human waste in the Building's stairwells. He stresses that Strawder testified that he found human waste in the Building's stairwells and elevators every other day. Strawder, plaintiff contends, acknowledged that he was designated to receive complaints of dangerous conditions in the building and stated that he informed his supervisor of incidents involving human waste but maintained no record of those incidents in his daily checklist. Plaintiff also notes that, although the NYCHA defendants submitted the caretaker checklists from July 6, 2009 to August 25, 2009, they included no checklists from the date of the Accident or the preceding two days. Accordingly, plaintiff urges that any prior complaints regarding urine in the stairwells went undocumented. Plaintiff concludes that the NYCHA defendants "did absolutely nothing to . . . maintain the premises in a reasonably safe condition."

Plaintiff then argues that the NYCHA defendants' actual notice of a recurring dangerous condition permits imputing constructive notice of each specific reoccurrence. Plaintiff suggests that the NYCHA defendants could have taken various measures to improve security and combat this recurrent condition, but instead "did absolutely nothing."

Plaintiff submits the sworn witness statement of Vivianna Brown, a former Building resident, who states that the Building's stairwells, elevators and halls were "always wet with urine[,] water or anything else." She recounts that she reported this condition to Building maintenance "all the time," but that it never improved.

(4)

The NYCHA defendants reply that Strawder's testimony regarding his daily inspection and cleaning of the Building's stairwells and Burch's explanation that the Emergency Services Department received no complaints of a liquid or a slippery condition in the stairwell before the Accident together make a prima facie showing that the NYCHA defendants lacked actual or constructive notice of the condition that purportedly caused the Accident. They contend that plaintiff's complaint contained no mention of any alleged recurring urine problem and that plaintiff, at the 50-h hearing, testified that he did not see or smell the liquid and suggested that it might have been soap [*4]or water. They argue that Strawder's deposition statement that he never found urine between the Building's 9th and 10th floors (instead, apparently, often finding it in other locations) rebuts plaintiff's allegation that a recurring urine problem existed in the location that he fell. The NYCHA defendants urge that a general awareness of a potential condition does not suffice to put a defendant on constructive notice of specific reoccurrences.

Discussion

The Summary Judgment Standard

"Summary judgment is a drastic remedy made in lieu of a trial which resolves the case as a matter of law" (Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 54 [2011], citing Andre v Pomeroy, 35 NY2d 361, 364 [1974]; see also Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). A summary judgment movant must show prima facie entitlement to judgment as a matter of law by producing sufficient admissible evidence demonstrating the absence of any material factual issues (CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Failure to make such a showing requires denying the motion regardless of the sufficiency of any opposition (Vega, 18 NY3d at 503). The opposing party overcomes the movant's showing only by introducing "evidentiary proof in admissible form sufficient to require a trial of material questions" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Considering a summary judgment motion requires viewing the evidence in the light most favorable to the motion opponent (Vega, 18 NY3d at 503). Nevertheless, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat a summary judgment motion (Zuckerman, 49 NY2d at 562). "The court's function on a motion for summary judgment is to determine whether material factual issues exist, not to resolve such issues" (Ruiz v Griffin, 71 AD3d 1112, 1115 [2010] [internal quotation marks omitted]).

Premises Liability

A defendant moving for summary judgment in a premises liability case must make a prima facie showing "that it maintained the premises in a reasonably safe condition and that it did not create a dangerous or defective condition on the property or have either actual or constructive notice of a dangerous condition for a sufficient length of time to remedy it" (Rendon v Broadway Plaza Assoc. L.P., 109 AD3d 975, 2013 NY Slip Op 05994, *2 [2013]; see also Van Dina v Olsen, 106 AD3d 903, 903 [2013]; Wienges v Newburgh Mall, LLC, 94 AD3d 1110, 1110 [2012]). To impute constructive notice to a defendant, "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 Guzman v Jewish Bd. of Family & Children's Servs., Inc., 103 AD3d 776, 777 [2013]; [*5]Minor v 1265 Morrison, LLC, 96 AD3d 1024, 1025 [2012]).

A mere general awareness that some dangerous condition may exist does not constitute the notice requisite for premises liability (see Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]; Gordon, 67 NY2d at 838), but a defendant's actual notice of a recurring dangerous condition left unaddressed presents a factual question that bars granting summary judgment (see Amendola v City of New York, 89 AD3d 775, 776 [2011] ["the defendant's submissions failed to eliminate all triable issues of fact as to whether it had actual notice of a reoccurring hazardous condition which routinely went unaddressed"]; Gloria v MGM Emerald Enters., 298 AD2d 355, 356 [2002] ["(t)he case at bar does not present a situation where a known defect on the premises is routinely left unattended and causes a recurring hazard"]; see also Chianese v Meier, 98 NY2d 270, 278 [2002] [imputing constructive notice as defendants "had actual notice of a particular recurring safety issue that was reasonably within their power to correct"]).

Here, the NYCHA defendants' submissions do not suffice to make a prima facie showing warranting summary judgment. They fail to demonstrate, as a matter of law, that they cleaned and inspected the stairwells with sufficient frequency to maintain the premises in a reasonably safe condition (see Lopez v New York City Hous. Auth., 255 AD2d 160, 160 [1998]), particularly given their awareness of the ongoing problem of human waste in the Building's public areas. The NYCHA defendants also fail to make a conclusive showing that notice should not be imputed to them on grounds either that the liquid on the stairs was present for a duration sufficient to create constructive notice or that they had actual notice of a recurring problem of urine in stairwells and responded inadequately. Accordingly, it is

ORDERED that the NYCHA defendants' motion is denied in its entirety.

This constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: Plaintiff asserted, in a verified bill or particulars, that the accident caused him, among other injuries, fractured knees, a fractured right elbow and wrist, head injuries and spinal strain.