Muniz v New York City Tr. Auth.

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Muniz v New York City Tr. Auth. 2014 NY Slip Op 33485(U) January 22, 2014 Supreme Court, New York County Docket Number: 114460/09 Judge: Michael D. Stallman 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] ~\\i \~ \ SUPREME COURT OFLTHE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART 21 Hon. _ _.................................. .........................................""'N MICHA EL"""'D STA LLMA'" Justice STELLA MUNIZ, ~~~~[~~ Plaintiff, . v. F I LE JAN 31 2014 NEW YORK CITY TRANSIT AUTHORITY, J~ ''· 7 (\.l\4 ~~OTION SEQ. NO • L C~RK'S OFFICE GENE NVS SU . EME COURT • CIVll The following papers, numbered 1 to _J__ were read on this motion for summary judgment Notice of Motjon; Affirmation in Support - Exhibits A-I Affirmation In. Opposition I No(s) ........... _ _ 1 -2..__ I No(s). __,3....__ _ Upon the foregoing papers, it is ordered that the motion of def,ndant New Yori( City Transit Authority (NYCTA) is denied. In this action, plaintiff alleges that, on July 29, 2008, at approxim,tely 5:00 p.m., she slipped and fell on a wet platform, littered with refuse, garbage and debris, while walking towards the F train at tl'\e Herald Square subway station located at West 34th Street and Sixth Avenue. At her deposition, plaintiff testified, uWflen I fell, I put my hand on the floor and it was - I goJ full of mu<t- It was Chinese - some type of Chinese food, a lot. Q: Before you fell, did you observe that garbaQe on the staircase? A: No. Q: A: Q: A: *** How did you fall, in what way? I slipp[ed]. ~ ** Where was the garbage on which you slipp'd on the left foot? A lot. (Continued . . . ) Page 1 of 3 [* 2] Muniz v NBiN YNk City Tr. Auth., lnde>;c No. 11A460/09 Q: A: Q: A: Where was it? On the floor. *** When was the first time you observed the garbage? When I fell." (Feinstein Affirm. Ex G [Muniz EBT], at 16-19.) Defendant moves for summary judgment on the grounds that defendant neither caused or created the alleged defectjve condition nor had prior notice of the alleged defective condition. In ~upport ~f its motion, defendant submits the deposition testimony of Vernon A. Kelley, a NYCTA cleaner of the subject location. (Fein~tein Aftirm. Ex G [Kelley EBT].) Defendant also submits the cleaning schedul9 of the subject location for Summer 2008. (Feinstein Affirm. Ex H.) ~elley testified that, he worked at the subject location in July 2008 OJl weekday, from 4p.m. to midnight and that, when he qrrived at the station, he would "walk the platform to see how bad it is see, jf [he] need[s] to get into gear immediately," and then he woµld start cleaning. (Kelley EBT at 16-17.) Defendant has failed to demonstrate its entitlement to judgment as a mattfr of law because it has not established lack of notice of the alleged d~fective eondition. To meet its initial burden on the i¥ue of lack of cQ11structive notice, defendant "must offer soll)e evidence as to when the area in question was last ~leaned or inspect~d relativ,e to the time whep the plaintiff fell." (Granillo v Toys "R" US, Inc., 72 AD3d 1024 [2d Dept 2010][citations omiUed]; Moser v BP/CG Ctr. I, LLC, 56 AD3d 323, 324 [1st Dept 2008]). "A defendant demc;>nstrates lack of constructive notice by producing evidence of its maintttnance activities on the day of the accident, and specifically that the dangerous condition did not exist when the area was last inspected or cle'9ned before pl1¥ntiff fell." (Ross v Betty G. Reader Revocable Trust, 86 AD3d 419, 421 [1st Dept 2011]; see also Se/eznyov v New Yqrk City Tr. Auth., 2014 WL 211315, 2014 NY App Div LEXIS 292 [1st Dept, Jan. 21, ?014, No. 110778/08].) Furthermore, testimony as to general procedure.- is insufficient for summary judgment purpofes. (Torres v New York City Tr. Auth., 79 AD3d 553 [1st Dept 2010].) (Continued . . .) Page 2 of 3 [* 3] Muniz v New York City Tr. Auth., Index No. 114460/09 Here, altt\ough Kelley testified that, during July 2008, he worked on weekday-. from 4p.m. to midnight at the subject location and the accident report shows Kelley worked on the date of the alleged incident (Feinstein Affirm. Ex I), Kelley was unable to state that he had a specific recollection of working on the date of the alleQed incident. (Kelley EqT at 18.) Kelley only testified as to what his general cleaning routine was for July 2008, not what actually occurred on July 29, 2008 before plaintiff's alleged incident. Moreover, the cleaning schedule JUbmitted was a general cleaning schedule fqr Summer 2008, not the aqtual date of tbe alleged in~ident. Therefore defendant's motion for summary judgment must be denied. FILED I I ' i Dated: __....,fk ___ i!?-~fr~ NeVJYork, N~ York 1. Check one: ................................................ . 2. Check if appropriate: ................. MOTION IS: 3. Check if appropriate: ................................... . L_ _ _, J.S.C. D CASE D!SPOSED x NON-FINAL DIS~SITION D GRANTED x DENIED D GRANTJFD IN PART LJ OTHER D SETTLE 9RDER D SUBMIT ORDER D DO NOT POST D FIDUCIARY APPOlt.ITMENT D ~EFERENCE Page 3 of 3 [* 4] I .-' SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. _ _=M=IC~H~A~E=L~D~·~S~T~A=L=LM~A~N PART 21 Justice INDEX NO. STELLA MUNIZ, Plaintiff, 114460/09 MOTION DATE 12/2/13 MOTION SEQ. NO. _QQj_ - v - NEW YORK CITY TRANSIT AUTHORITY, Defendant. The following papers, numbered 1 to _3_ were read on this motion for summary judgment Notice of Motion; Affirmation in Support - Exhibits A-I Affirmation in Opposition I No(s). ~1~-2~-1No(s). -'3~--- Upon the foregoing papers, it is ordered that the motiop of defendant New York City Transit Authority (NYCTA) is denied. w (.) In this action, plaintiff alleges that, on July 29, 2008, at approximately 5:00 p.m., she slipped and fell on a wet platform, littered with refuse, garbage and debris, while walking towards the F train at the Herald Square subway station located at West 34th Street and Sixth Avenue. At her deposition, plaintiff testified, j:: rn .., ::> 0 I- C w a: a: w u.. w a: .. >- ...I~ ...I z ::> 0 u.. rn I- <( Uw ~ a: rn C!l Wz rn S: -o a: w ...I rn ...I <( 0 (.) u.. -- J: z w Q I- a: Oo I~ u.. "When I fell, I put my hand on the floor and it was - I got full of mud. It was Chinese - some type of Chinese food, a lot. Q: Before you fell, did you observe that garbage on the staircase? A: No. * * * Q: A: How did you fall, in what way? I slipp[ed]. * * * Q: A: Where was the garbage on which you slipped on the left foot? A lot. (Continued ... ) Page 1 of 3 [* 5] , Muniz v New York City Tr. Auth., Index No. 114460/09 Q: A: Where was it? On the floor. * ** Q: A: When was the first time you observed the garbage? When I fell." (Feinstein Affirm. Ex G [Muniz EBT], at 16-19.) Defendant moves for summary judgment on the grounds that defendant neither caused or created the alleged defective condition nor had prior notice of the alleged defective condition. In support of its motion, defendant submits the deposition testimony of Vernon A. Kelley, a NYCTA cleaner of the subject location. (Feinstein Affirm. Ex G [Kelley EBT] .) Defendant also submits the cleaning schedule of the subject location for Summer 2008. (Feinstein Affirm. Ex H.) Kelley testified that, he worked at the subject location in July 2008 on weekdays from 4p.m. to midnight and that, when he arrived at the station, he would "walk the platform to see how bad it is see, if [he] need[s] to get into gear immediately," and then he would start cleaning. (Kelley EBT at 1 6-17.) Defendant has failed to demonstrate its entitlement to judgment as a matter of law because it has not established lack of notice of the alleged defective condition. To meet its initial burden on the issue of lack of constructive notice, defendant "must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell." (Granillo v Toys "R" US, Inc., 72 AD3d 1024 [2d Dept 2010][citations omitted]; Moser v BP/CG Ctr. I, LLC, 56 AD3d 323, 324 [1st Dept 2008]). "A defendant demonstrates lack of constructive notice by producing evidence of its maintenance activities on the day of the accident, and specifically that the dangerous condition did not exist when the area was last inspected or cleaned before plaintiff fell." (Ross v Betty G. Reader Revocable Trust, 86 AD3d 419, 421 [1st Dept 2011]; see also Seleznyov v New York City Tr. Auth., 2014 WL 211315, 2014 NY App Div LEXIS 292 [1st Dept, Jan. 21, 2014, No. 110778/08].) Furthermore, testimony as to general procedures is insufficient for summary judgment purposes. (Torres v New York City Tr. Auth., 79 AD3d 553 [1st Dept 2010].) (Continued ... ) Page 2 of 3 [* 6] Muniz v New York City Tr. Auth., Index No. 114460/09 Here, although Kelley testified that, during July 2008, he worked on weekdays from 4p.m. to midnight at the subject location and the accident report shows Kelley worked on the date of the alleged incident (Feinstein Affirm. Ex I), Kelley was unable to state that he had a specific recollection of working on the date of the alleged incident. (Kelley EBT at 18.) Kelley only testified as to what his general cleaning routine was for July 2008, not what actually occurred on July 29, 2008 before plaintiff's alleged incident. Moreover, the cleaning schedule submitted was a general cleaning schedule for Summer 2008, not the actual date of the alleged incident. Therefore defendant's motion for summary judgment must be denied. Dated' I /71-;,.-(r~ NevJYork, Ne -~ft'};,_,,.__,,._____ , / ' York 1. Check one: ...... ··········································· 2. Check if appropriate: ................. MOTION IS: 3. Check if appropriate:.................................... [J D CASE DISPOSED GRANTED X DENIED /!c:;> J.S.C. X NON-FINAL DISPOSITION [J GRANTED IN PART D OTHER D SETTLE ORDER D SUBMIT ORDER D DO NOT POST D FIDUCIARY APPOINTMENT D REFERENCE Page 3 of 3

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