Vasquez v College of New Rochelle

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Vasquez v College of New Rochelle 2014 NY Slip Op 33419(U) December 4, 2014 Supreme Court, Bronx County Docket Number: 303386/2007 Judge: Sharon A.M. Aarons Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED De 09 2q14 Bronx County Clerk I I S PR ME C~URT OF THE STATE OF NEW YORK C U TY OFI BRONX Part 24 R VASQUEZ, Plaintiff, Index No. 303386/2007 -againstT E A u DECISION AND ORDER OLLE4E OF NEW ROCHELLE and NAE/I IASSOCIA TION OF THE COLLEGE W RO¢HELLE INC., I Defendants. I I H N. HARO~ A.M. AARONS. J.S.C.: I I Defentjants THE COLLEGE OF NEW ROCHELLE and ALUMNAE/I ASSOCIATION OF I T E OLLE(jJE OF NEW ROCHELLE INC. (hereinafter, collectively, College) move for summary I ju gm nt dismlissing the complaint pursuant to CPLR 3212. Plaintiff submits written opposition. The m tion is grant~d. i On Mar 16, 2006, plaintiff was allegedly injured when he slipped and fell on an interior stairway I on pre ises o~ned by defendant College and located at 332 East 149r1i Street, in Bronx County. As she I I ed the ~tairway from the fourth to the third floor, " ... Tfelt my feet got caught to something and then ! fr mt ere I triwped down the steps." The plaintiff described the step as "broken," but did not identify or I de crib the n~ture of the defect. She "had no idea" what caused her foot to stick to the step, but she I id ntifi d the location of her fall from a photograph. Photographs of the accident location indicate that the I pl inti fell at~ place where there was a rusted, darkened spot in the middle of the step, between the back of hes ep and l I wide tread applied to the outer edge of the step. I In support of the motion, defendant College submits the pleadings; the verified bill of particulars; 1 [* 2] FILED De 09 iq14 Bronx County Clerk ti e ut certifie+ unsworn deposition testimony of the plaintiff; 1 and the certified, unsworn deposition testim ny of Walter Barnes, defendant's building superintendent. The superintendent testified that this I I p rticl lar step ras granite, and had been removed and "turned over" (i.e., replaced face-down), because the e ge 1 ad becdme worn. He identified the black mark in the photograph as a water-stain; the step was I " om letely s+ooth" on the day of the accident. There was no depression in the area which the plaintiff I te tifi d was "~roken." In op~osition, plaintiff submits the affidavit and curriculum vitae of Robert Schwartzberg, a I p ofes ional ergineer. The engineer asserts that based on the plaintiffs testimony and his review of the pl oto raph, th~ dark spot on the step is a depression or low spot. He opines that the defendant breached its i st tutory duty lo maintain the stairway in a safe condition. A landowner is under a duty to maintain its property in a reasonably safe condition under the ! e isting circm~stances, including the likelihood of injury to third parties, the potential that any such injury I w uld be of a serious nature and the burden of avoiding the risk. In order to recover damages, a party must I I establi h that the owner created or had actual or constructive notice of the hazardous condition which p ecip tated tht injury (Piacquadio v Recine Realty Corp., 84 NY2d 967, 969, 646 NE2d 795, 622 NYS2d I I 3 [1 94]. "lfo constitute constructive notice, a defect must be visible and apparent and it must exist for I a uffi ient len~h of time prior to the accident to permit defendant's employees to discover and remedy it." I ord n v. Amfrican Museum ofNatural History, 67 N.Y.2d 836, 837, 492 N.E.2d 774, 501N.Y.S.2d646 [1986] . I I "A detndant who moves for summary judgment in a slip-and-fall action has the initial burden of I I a prinia facie demonstration that it neither created the hazardous condition, nor had actual or I ctive n~tice of its existence" (Smith v Costco Wholesale Corp., 50 AD3d 499, 500, 856 N.Y.S.2d I I 1 I An u*sworn, uncertified deposition transcript may be considered where it is not c alle ged asiinaccurate, and no party has raised the lack of a certification. Rosenblatt v. St. G or e Healt'fz and Racquetball, 984 N.Y.S.2d 401 (2d Dept. 2014). 2 [* 3] ' FILED De 09 2014 Bronx County Clerk I I 5 3 [1st Dept i2008]). "To meet its burden on the issue of lack of constructive notice, the defendant must ! ome evildence as to when the accident site was last cleaned or inspected prior to the plaintiffs fall." I iao Gula v. Quang Big Realty Corp., 81 A.D.3d 610, 611, 916 N.Y.S.2d 155 [2d Dept. 2011] i ns omi~ted]; Quintana v. TCR, Tennis Club of Riverdale, Inc., 118 A.D.3d 455, 987 N.Y.S.2d 68 I *] ! [1st D pt. 20 [defendant failed to establish a lack of constructive notice of the wet condition on steps I where the mo~ing papers contained no indication of when the area was last inspected prior to the accident]; ! I va i v I 95f Bronxdale Corp., 232 AD2d 284, 649 NYS2d 11 [pt Dept. 1996] [issue of fact as to ! wheth r existe!nce of condition on steps for 90 minutes constituted constructive notice].) I Defenctant College established prima facie their entitlement to judgment by submitting evidence, i includ ng plai~tiff s deposition testimony, demonstrating that plaintiff was unable to identify the cause of I I h r fa! . (Scot~ v Rochdale Vil., Inc., 65 AD3d 621, 883 NYS2d 726 [2d Dept. 2009] [plaintiff was unable to identify the fa use of her ace id cot without en gaging in spccu lation]; Reed v Piran Realty Corp., 3 0 AD3 d 3 9, 8 8 NYSid 58 [l st Dept. 2006] [no reasonable inferences existed as to causation based upon plaintiff's I ! i e pert's opinio~ that the staircase violated several provisions of the New York City Administrative Code, ! in the 'bsence bf any evidence connecting the alleged violations to plaintiffs fall], lv denied 8 NY3d 801, I I 8 I N 2d 108!, 828 NYS2d 292 [2007]). I I A fair !reading of plaintiffs testimony indicates that while she claimed the step was broken, she i fa led o identify any defect whatsoever. She never testified that there was a depression or low spot. She ! n ver identifie~ any defect other than to state that her foot became stuck, caught, or grabbed. 2 The • 1~ere fact that a plaintiff does not know the cause of a fall is not always fatal to plaintiffs ! cl un. For exajnple, in Rodriguez v. Leggett Holdings, LLC (96 A.D.3d 555, 947 N.Y.S.2d 429 [I st Dept. i i 2 Colla~o v. Concourse One Co., 6 A.D.3d 320, 775 N.Y.S.2d 142 (1st Dept. 2004), which by thel plaintiff, does not state that merely stating that a step is broken raises issues of ather, in that case, the plaintiff described the step as "broken or rotted" with a "hole" "on th to " or "ef ge" about three inches in height. I I 3 [* 4] FILED De 09 2014 Bronx County Clerk I I 2 12] , plaint*, who slipped and fell as he ascended the interior stairs of defendants' building, raised triable i 1s ues f fact ~y the submission of the affidavit of an expert engineer ,who inspected the subject stairs and I ' found variety! of defects and building code violations at the location of the spot where he allegedly slipped. I ( ee a so, Babrch v. R.G.T Rest. Corp., 75 A.D.3d 439, 906 N.Y.S.2d 528 [1st Dept. 2010] [the injured I pl inti f's testt1ony that she slipped on the top step of the subject stairway, coupled with her expert's te tim ny oft! e slippery condition of such steps due to worn-off treads, provided sufficient circumstantial I i e iden e to railse an issue of fact as to whether her fall was caused by the allegedly defective condition]). I In the *resent case, however, the expert's affidavit does not raise any issue of fact as to the existence I feet. Tpe expert never examined the step itself, and only surmises that the photograph depicts a i d pres ion, as ~pposed to merely a dark spot on the granite step. Indeed, the steps have a number of similar di col rations ~cross the entire length, which do not appear to be depressions. "Where the expert's ultimate I asserti ns are ~peculative or unsupported by any evidentiary foundation ... the opinion should be given no I pr bat ve forcJ and is insufficient to withstand summary judgment" (Diaz v New York Downtown Hosp., I I 9 N. .2d 54~, 544, 784 N.E.2d 68, 754 N.Y.S.2d 195 [2002]; Buchholz v. Trump 767 Fifth Ave., LLC, I I 5 .Y. d 1, 83jl N.E.2d 960, 798 N.Y.S.2d 715 [2005].) I Accor1ingly, the motion is granted. It is accordingly, I ORD~RED that the complaint is dismissed in its entirety as against defendants THE COLLEGE ! 0 N W ROqHELLE and ALUMNAE/I ASSOCIATION OF THE COLLEGE I 0 N "W ROdHELLE INC, and it is I ORDERED that said defendants shall serve a copy of this order with notice of entry on the plaintiff. D ted: Decemter ·~ , 2014 SlL\R~~-)N_S_. J-.S-.C. 4

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