Persaud v Persaud

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Persaud v Persaud 2015 NY Slip Op 31994(U) August 11, 2015 Supreme Court, Queens County Docket Number: 19956/12 Judge: Duane A. Hart 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] : . . .. '. · :: ' .. ...·. .. ·~ •. -;.;;: ···: Short Form Order '• I I NEW YORK SUPREME COURT - QUEENS '' I Present: ----------------------------------~--- JUSTICE SAVITRI PERSAUD, Plaintiff(s), -againstKANITA PERSAUD and DIANA PERSAUD, May 11, 2015 1 -----~------------~~~~~~~~~~~~: __ J___ _ (\\ · Cal. No.: 119 \_) Mot. Seq. No.: 2 I The following papers numbered 1 to 9 read on this motiori by Defendants KANITA PERSAUD and DIAN~ PERSAQO, for an Order, pursuant to CPLR §3212, granting summary judgment in favor of said Defendant, dismissing Plaintiff's complaint as well as any and all cross-claims as against it on the ~ssue of liability. I I I PAPERS NUMBERED I Notice of Motion-Affidavits-Exhib~ts ..... . Answering Affidavits-Exhibits .... Replying Affidavits ............. ·I· ...... · · · i· ........ . 1 - 4 5 - 7 8 - 9 I Upon the foregoing papers, i~ is ordered that the motion by· Defendants KANITA PERSAUD and DIANA PERSAUD for an Order, pursuant to CPLR §3212, granting summary judgment in favor of said Defendants, dismissing Plaintiff'sl'complaint as well as any and all cross-claims as against it on the issue of liability, is granted, and Plaintiff's Complaint is dismiissed. I I Plaintiff in the above action seeks to recover for personal injuries arising out of an allegectjslip and fall on rainwater that entered the house through an open window inside the premises located at 93-17 123rct Street, Quee~s County on September 28, 2009. Defendants KANITA PERSAUD and DIANA PERSAUDwere the owners of the premises on the date of the incident. Plaintiff SAVITRI PERSAUD agreed with Defendants, in or arobnd 2001, to live on the first floor of the subject premises but the parties did not sign a lease. Plaintiff SAVITRI PERSAUD had lived in the house since 1987, and owned the premises until selling it to Defendants KANITA PERSAUD I I I I I .. .. [* 2] and DIANA PERSAUD. Plaintiff claimed that her injuries are the result of Defendants' negligence ! in the ownership, operation, maintenance, management and control of the subject floor. I Plaintiff commenced this action by filing a Summons and Complaint on September 26, 2012. Is~ue was joined by the service of Oefendants KANITA PBRSAQD and OIANA;PERSAUO's Verified Answer on or about February 26, 2013. Oiscove~y demands and responses were served, and depositions went forward. The Note of Issue with a Certificate of Readiness was filectjon September 25, 2014. Now, upon motion, Oefendants KANITA PERSAUD and DIANA PERSAUD argue that they are entitled. to suµunary judgment on the issue of liability a~ there is no proof of ~egligence with respect to the herein accident because the Defenct~nts owed no duty to protect or warn the Plaintiffs of the wet floo~, had no actual or constructive notice of the condition, and had nol chance to remedy the condition because neither Defendant was present at the time of the rainfall or the accident. I In support of its motion, Defepdants submitted the deposition testimonies of Plaintiff SAVITRI PERSAUD, and of Defendants KANITA PERSAUD and DIANA PERSAUD, daughter~ of Plaintiff and owners of the premises where the incident occurrJd. In opposition, Plaintiff argueb that Defendants did to protect and warn her. And by leaving the window open, failed to meet the standard of car:e owed to Plaintiff. thus argued that there are issues facts as to whether created a dangerous condition an~ whether they had constructive notice of the conctiti9n. ot owe a duty Defendants Plaintiff Defendants actual or It is well settled that a party appearing in opposition to a motion for summary judgment mu;st bring proof and ·present evidentiary facts sufficient to ra~se a triable issue of fact. See Morgan v. New York Telephone, 220 IA.D.2d 728, 633 N.Y.S.0.2d 319 (2d Dep't. 1995). Conclusory assertions devoid of evidentiary facts are insufficient. ~ Figueroa v. !Gallagher, 20 A.0.3d 385, 798 N.Y.S.D.2d 143 (2d Dep't. 2005); JMorgan v. New York Telephone, supra. Opposition to summary judgment cannot rest on surmise, conjecture, or speculation. See Par'.a?J:on Cable Manhattan v. P&S 95th Street Assoc., 240 A.D.2d 255, 658 N.Y.S.D.2d 600 (1st Oep't. 1997). I. To impose liability on a defen~ant as a result of an allegedly dangerous condition, there must ~e evidence that the dangerous condition existeq, an~ that the I defendant either created the condition, or had either actual or1constructive notice of it, and I 2 I I I [* 3] failed to remedy the dangerous condition within a reasonable time. Shea~· Mas~a,ge9u9 Qnio,n Free ~cpdol Dist., 117 A.D.3d 817, 985 N.Y.$.D.2d 675 (2<;! Dep't. 2014); i Cuillq v. Fairfield Property Services, L.P., 112 A.0.3d 777, 977 iN.Y.S.D.2d 353 (2d Dep't 2013). A gen~ral a~areness that a hazardoµs condition may be present on the premises is insufficient to Eistablish the required notice. Gershfel<J. v. f:1arin,e Park Funera+ ~om~, Inc., 62 A. D. 3d 833, 879 N.Y.S.0.2d 549 (2d Dep't 2009). I I Based on the evidence submittec;i, pefendants owed no duty to protect or wa:r;n Plaintiff agains~ the condition, as Plaintiff testifiec;i at her deposition that ! she believed rain would leak through the open window. Gener.;i.lliy, a landowner must act as a reasonable person in maintaining hi~ property in a reasonably safe condition view of all the !circumstances, including the likelihood of injury to others, th1 seriousness of the injury and the burden of avoiding the risk. Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 8~8 (1976). The scope of the duty varies with the foreseeability of tpe potential harm. See Tagle v. Jakob, 97 N.Y.2d 165, 168, 737 N.Y.S.2d 331, 763 N.E.2d 107 (2001). There is no.duty, however, to prot~ct or warn against an open and obvious condition, which, as a ma~ter of law, is not inherently dangerous. Bl:iJ1fl'). V: Bias Yaak,o,v J1c;~demy for Girls, 123 A.D.3d 866 (2d Dep't 2014) (finding wet asphalt caused by a sprinkler is open and obvious}, or where the allege?ly <;iangerous conc;iition can be recognized by common sense. Smith v. Stark, 67 N.Y.2d 693, 499 N.Y.S.2d 922, 490 N.E.2d 841 (1986);. Generally, a condition is not "dangerous" or "hazardous" if it wa~ readily observable through the ordinary use of one's senses. ,zan;g; H;e,e L~e v ~ Sung Whun Oh, 3 A.D.3d 473, 771 N.Y.S.2d 134, 135 (2d Oep't 2004). in I I Defendants demonstrated that ;an open and obvious condition existed which Plaintiff would recognize by using either common sense, or the ordinary use of her senses. Plaintiff testified that she believed if it rained while the~ windows were open, water would come in, thus recognizing the corltdition as a matter of common sense. Plaintiff testified that she did not look down to see the water when she went to close the Iwindow, although the room was well-lit. The Court of Appeals doejs not "equate obviousness with visibility." Vega y. Re~tani Const·! Corg., 18 N.Y.3d 499, 507, 942, N.Y.S.2d 13, 18, 965 N.E.2d 240, 24~ (2012). Even if the water ~as not visible, Plaintiff was aware 1that rain water could come in through the open window. I I The evidence, as submitted, al$o indicated that Defendants did not have actual or constr~ctive no~ice 9f the water on the floor. Because it is undisputed that Defe?dants were not on the premises during or after the rainfall, they had no act~ai notice of the I 3 i I I I I [* 4] .. condition. To constitute construtti ve notice, a defect must be visible and apparent, and must e*ist for a sufficient length of time prior to an accident to per~it a defendant to discover and remedy the defect. Gordon v. Ameri~an Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646,i492 N.E.2d 774 (1986). A general awareness that a dangerous condition may be present is legally insufficient to charge defendant ~ith constructive notice. Gordon, 67 N. Y. 2d at 838; see also, Carinona v. 40-25 Hampton, LLC, 65 ---.I A.0.3d 562 (2d Dep't 2009) (finding general awareness that tenants, at times, opened a staircase window was insufficient to raise a I triable iss\le of fact as to whether defendant had constructive notice of the wet condition in th~ stairway) . I . Here, the Plaintiff testifier that she and another daughter, Chandra, were present in the home and that they were not aware of the impending storm that arose an otherwise nice day. Both Defendants testified that they were away at the time and were I . unaware of both the rain and anr accumulation of water on the floor. rm I Finally, because Defendants ~ere not present at the time of the storm or at the time water iaccumulated, they did not have adequate time to remedy the condition, even if the condition were dangerous and notice were impute~ to them. .Once a defendant has I actual or constr~ctive notice pf a dangerous 9ondition, the defendant has reasonable time to jundertake remedial actions that are reasonable and appropriate, considering the circumstances. See Friedman v. ~annett Satellite Infb. Network, 302 A.0.2d 491, 491492, 755 N.Y.S.2d 412 (2d Dep't 2003). It would be unreasonable to expect the defendants to return from Florida to close the windows or mop up their floor. Plaintiff testified that she was expected to close the windows if it were to rkin and cause an accumulation of water. I !. Upon review, Defendants' KANI/TA PERSAUD and DIANA PERSAUD made a prima facie showing of entitle~ent to judgment as a matter of law. Plaintiff failed to producelevidentiary proof sufficient to establish the existence of an :issue of fact. See Alvarez v. Prospect Hosp., 68 N. Y. 2d 320 ( 198/6) ; Winegrad v. NYUMed. Ctr., 64 N.Y.2d 851 (1985). i Dated: August l\ , 2015 I r· ~2~15 . ... AUG 1 7 I COUNTY CLERK QUEENS cqYiNTY

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