Buestan v Tiff Realty Prop. Inc.

Annotate this Case

Download PDF

Buestan v Tiff Realty Prop. Inc. 2020 NY Slip Op 35261(U) January 16, 2020 Supreme Court, Suffolk County Docket Number: Index No. 600110/2017 Judge: Carmen Victoria St. George Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 600110/2017 FILED: SUFFOLK COUNTY CLERK 01/22/2020 12:34 PM NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 01/22/2020 SUPREME COURT-STATE OF NEW YORK TRIAL TERM, PART 56 SUFFOLK COUNTY PRESE T: Hon . Carmen Victoria St. George Justice of the Supreme Court X Index No. 600110/2017 MARIA BUEST AN, Plaintiff, Motio n Seq: 002MG Decision/Order -againstTIFF REALTY PROPERTY I C., Defendant. - - -- - - - - - - - - - - - - - - -- - - X The follow ing numbered papers were read upon thi s motion: Notice of Motion/Order to Show Cause .......... . . Answering Papers . . . . .. .. .. ................ . ........... .. Reply ... . . ...... .. . ... . . .. ..... . ..... ... .. . .. ...... ... .. ... . Briefs: Plaintiffs/Petitioner's ... ...... .... .. .. ... ... . Defendant' s/Respondent's .. ... .... .. ... ... . 30-36 40-41 43 Befo re the Court is an action to recover for per ·onal injuries suffered by plaintiff on June 25 2016 w hen she slipped and fe ll on an "oil y substance'· in the lobby of the defendant' s building located at 1 aple A venue, Patchogue, ew York. Defendant moves this Court for an Order pursuant to CPLR § 3212, granting summary judgment in its favor and dismissing plaintiffs Complaint in its entirety. Plaintiff opposes defendant 's motion. Defendant 's motion is granted. Plaintiff is a resident in defendant 's apartment complex. On June 25, 2016 , at approximately 8am, plaintiff was leaving the apai1me nt bui ldi ng to go to work . She testified that she exited the elevator at the location and slip ped and fell. She further testified that after she fell , she noticed a yellow caution sign and that the floor looked recently mopped. Plaintiff states that when the building porter assisted her after the fa lI he told her there was an "oily substance" on the floor. However, as per the bui lding porter's deposition testimony, the po11er does not rem mb r having an y conversation with the pl ai ntiff regarding an "oily substance." Plaintiff commenced the action by filing a Summons and Compl aint on January 4, 2017 and defendant [* 1] 1 of 4 FILED: SUFFOLK COUNTY CLERK 01/22/2020 12:34 PM NYSCEF DOC. NO. 44 INDEX NO. 600110/2017 RECEIVED NYSCEF: 01/22/2020 joined issue by An wer on April 3, 2017. A ote of Issue was fi led on February 26, 2019 and the instant motion was filed on June 25, 2019. This Court recognizes that summary judgment is a drastic remedy and as such shou ld on ly be granted in the limited circumstances where there are no triable issues of fact (A ndre v. Pomeroy, 35 NY2d 361 [1974]). Summary judgment shoul d only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact (Cauthers v. Brite Ideas, LLC, 41 AD3d 755 [2d Dept 2007]). The Court's analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the plaintiff (Maka) v. Metropolitan Transportation Authority, 18 AD3d 625 [2d Dept 2005]). 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 issue of fact from the case (Alvarez v. Prospect Hosp., 68 Y2d 320 [ 1986]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). Failure to make such a showing requires denial of the motion , regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Ctr., 64 Y2d 851 [1985]). Once such proo f ha been offered the burden then sh ifts to the opposing pany, who, in order to defeat the motion fo r summary judgment, must proffer evidence in admissible form and "mu st show facts sufficient to require a trial of any issue of fact" (CPLR §-3212[b]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). As the courts function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Roth v. Barreto, 289 AD2d 557 [2d Dept 200 1]; O'Neil v. Town ofFishki/1, 134 D2d 487 [2d Dept 1987]). A defendant has constructive notice of a dangerous condition when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it (see Gordon v. American Museum of Natural History, 67 N. Y.2d 836, 837-838 [1986] ; Butts v. SJF, LLC, 171 A.D.3d 688, 689 [2d Dept 2019]' Cho Lun Yeung v. Selj1zelp [KIVJ Assoc., L.P. , 170 A.D.3d 653 653 [2d Dept 2019]). ' 'To meet its initial burden on the issue of constructive notice, the defi ndant must offer some evidence as to when the area in question was last deaned or inspected relative to the time when the plaintiff fell' "(Radosta v. Schechter 17 I A.D.3d 1112 1113 , (2d Dept 2019] , quoting Birnbaum v. New York Racing Assn., Inc. , 57 A.D .3d 598, 598-599 (2d Dept 2008]; see Lombardo v. Kimco Cent. Islip Venture, LLC, 153 A.D.3d 1340 [2d Dept 20 17]). " ·Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice ' " (Butts v. SJF, LLC, 171 A.D.3d at 689, supra, quoting Herman v. Lifeplex, LLC, l 06 A. D.3 d 1050, I 051 [2d Dept 2013 ]; see Giantomaso v. T. Weiss Realty Corp. , 142 A.D.3d 950, 95 1 [2d Dept 2016]). Defendant herein submits the pleadings, Verified Bill of Particulars and the parties' deposition testimony with its moving papers. Upon a reading of all submissions, the defendant's primafacie burden has been met particularly by submitting the deposition of the building's porter who testified that the area in question had been mopped in the hour between 7am and 8am 2 [* 2] 2 of 4 FILED: SUFFOLK COUNTY CLERK 01/22/2020 12:34 PM NYSCEF DOC. NO. 44 INDEX NO. 600110/2017 RECEIVED NYSCEF: 01/22/2020 on the date in question. Specifically, he testified that he mopped the area outside the elevators after empty ing the garbage cans which took him about IO minutes. The porter further stated it took him 20 minutes to mop the area. As such, his deposition testimony indicates that he mopped the area between 7:10am-7:30am. The plaintiff testified that she fell at 8:00am. Based upon the forego ing, defendant has established his prima.facie entitlement to summary judgment as a matter oflaw in its favor on the issue of li abil ity. Therefore, the burden shifted to plaintiff to produce evidentiary proof in admi ssibl e fo rm establishing the existence of material questions of fact. "[F]acts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted" (Kuehne & Nagel, Inc. v. Baden , 36 NY2d 539, 544 (1975): see also McNamee Construction Corp. v. City of New Rochelle, 29 AD3d 544 [2d Dept 2006]). Contrary to the plaintiffs' contention , it is incumbent upon them to come forth with evidence that the defendant had either created the allegedly dangerous condition or that it had actual or constructive notice of it and the mere fact that the defendant had not cleaned the area for 30 minutes, or had placed a caution sign in a particular area, or that it was disputed that there was an "oily substance" are all insufficient to raise a triable issue with respect to notice to the defendant (see Anderson v. Klein's Foods, 13 9 A.D.2d 904 [4th Dept 1988], a.ffd. , 73 .Y .2d 835 [1988]). There was no evidenc that the defendant had created the allegedly dangero us .. oily substance:· or had actual notice of it prior to the accident, and from the evidence wh ich was presented, any finding that the "o ily substance" had been on the floor for any appreciable period of time would be mere speculation. It is well settled that without evidence that the defendant created the dangerous condition or had actual notice of it, and absent a showing of evidentiary fac ts from which a_jury can in fer constructive notice from the amount of time that the dangerous cond ition existed, the complaint is dismissed (se e Fasolino v. Charming Stores, 77 1 .Y.2d 847, 848 [199 1]; see also, Cafiero v. Inserra Supermarkets, 195 A.D.2d 681 [3d Dept 1993] , ajjd. , 82 .Y.2d 787 [I 993]; Batiancela v. Staten Is. Mall, 189 A.D.2d 743, 743 - 744 [2d Dept l 993]; Edwards v. Terryville Meat Co .. 178 A.D.2d 580 [2d Dept 1991] · Paolucci v. First Natl. Supermarket Co. , 178 A.D.2d 636 [2d Dept 1991] ; Monje v. Wegman's Enters. , 192 A.D.2d 1133 [4th Dept 1993]; Grimes v. Golub Corp.. 188 A.D.2d 72L 722 [3d Dept 1992]- Grier v. Macy & Co., 173 A.D.2d 238 [ I st Dept 1991]' cf, Catanzaro v. King Kullen Grocery Co., 194 A.D.2d 584, 584- 585 [2d Dept 1993]; Farrar v. Teichholz , 173 A.D.2d 674, 676 [2d Dept 1991]). [n this case, plaintiff submits the affirmation of couns I, which is not evidence (Desola v. Made, Inc. , 213 AD2d 445 [2d Dept 1995]) and a marked photograph from her deposition which had not been provided with the transcript submitted with defendant's moving papers. Plaint iffs submission attempted for the first time to create a theory of liability against defendan t different from that asserted in the Complaint and the Bill of Particulars. This new theory was predicated on plaintiff falling on a recently mopped f1oor and not an "oily substance. " Just as the burden of a party opposing a motion for summary judgment is not met merely by repeating or incorporating by reference the allegations contained in the pleadings or bills of particulars (Jndig v. Finkelstein, 23 . Y.2d 728, 729 [ 1968]), that burden is not met by unsubstantiated assertions or speculatio ns of plaintiffs counse l that a defendant may have breached a possible duty of care (Zuckerman v. City of New York. 49 N. Y.2d , 562 [1980]). In this case, plaintiff never testified 3 [* 3] 3 of 4 INDEX NO. 600110/2017 FILED: SUFFOLK COUNTY CLERK 01/22/2020 12:34 PM NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 01/22/2020 that she sl ipped because of a freshly mopped floor , nor does she submit an affidavit to that effect in opposition. Such an as ertion as contained in the affirmation of plainti ffs counsel, who neither possessed personal knowledge of the events in question nor had any special expertise in the area of floor maintenance, cannot '"supply the evidentiary showing neces ary to successfully resist the motion'" (GTF Mktg. v Colonial Aluminum Sales, 66 N Y2d 965, 968 [1985], quoting Roche v Hearst Corp., 53 NY2d 767, 769 [1981 ]). Additionally, the Second Department has held that a recentl y mopped floor is read ily observa ble and not inherently dangerous (Cunningham v. Bay Shore Middle School, 55 AD3d 788 [2d Dept 2008] ; Ramsay v. Mt. Vernon Bd. of Educ. , 32 AD3d 1007 [2d Dept 2006]). Finally, this new theory is advanced after the No te of Issue was w hich would require this Court's leave for an Amended Bill of Particulars (CPLR § 3043/b/). As plaintiff has failed to offer any such reasons for her de lay in suppl ementi ng her claims thi s Co urt wi ll not consider the plaintiff's new theory (Hernandez v. Ezrow, 24 AD2d 730 [4th Dept 1965]; see also Siegel, N. Y. Prac. § 240 /5th ed./). Defendant ' s motion for summary judgment is granted and the Complaint is dismi ssed in its entirety. The foregoing constitutes the Order of this Court. Dated: January 16, 2020 Riverhead, Y , J.S.C. FINAL DlSPOSITIO [~ NON-FINAL DISPOSITION [ 4 [* 4] 4 of 4 ]

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.