Pasa v Montefiore Med. Ctr.
Annotate this CaseDecided on October 5, 2020
Supreme Court, Bronx County
Dominador Pasa and Maria Pasa, Plaintiffs,
against
Montefiore Medical Center, Defendants.
25598/2014E
Adrian Armstrong, J.
Upon the foregoing papers, the motion by defendants Montefiore Medical Center and Montefiore Sleep-Wake Disorders Center (hereinafter, collectively, "Montefiore" or "defendants"), for summary judgment is decided as follows:
The plaintiffs seek monetary damages for personal injuries allegedly sustained on August 7, 2014 when plaintiff Dominador Pasa (hereinafter, "plaintiff" or "Pasa") slipped in a shower stall while a patient at defendants' facility. Plaintiff testified at his deposition, in essence, that when he entered the shower, he observed no visible physical defects, and no foreign substances were present. However, after he turned on the water, dark black and brown water began to seep out of the shower drain. He described the floor as "slippery" or "slimy."
Whittaker, defendants' employee in charge of housekeeping, testified that the shower was cleaned every day, and that there were no prior complaints relating to the shower. Martin, the superintendent of the sleep lab, was a sleep technician during the time of the accident. Martin explained that housekeepers who were employed by Montefiore were responsible for cleaning and maintaining the shower. He testified that the shower was cleaned once a day in the morning. Martin was not aware of any defective condition with respect to the shower prior to the accident.
Defendants argue that Montefiore did not create the alleged condition, and lacked actual [*2]or constructive notice of any defective condition, and therefore plaintiff cannot establish a prima facie case of negligence in this slip and fall action. Plaintiff maintains that the defendants failed to establish a prima facie case on this summary judgment motion.
"A defendant who moves for summary judgment in a slip-and-fall action has the initial burden of making a prima facie demonstration that it neither created the hazardous condition, nor had actual or constructive notice of its existence" (Smith v Costco Wholesale Corp., 50 AD3d 499, 500, 856 N.Y.S.2d 573 [1st Dept. 2008]). "To meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall." (Quintana v. TCR, Tennis Club of Riverdale, Inc., 118 AD3d 455, 987 N.Y.S.2d 68 [1st Dept. 2014] [defendant failed to establish a lack of constructive notice of the wet condition on steps where the moving papers contained no indication of when the area was last inspected prior to the accident]; Qevani v 1957 Bronxdale Corp., 232 AD2d 284, 649 NYS2d 11 [1st Dept. 1996] [issue of fact as to whether existence of condition on steps for 90 minutes constituted constructive notice].)
Defendant's burden to establish a lack of constructive notice may be met by testimony of regular maintenance. (Raposo v. New York City Hous. Auth., 94 AD3d 533, 942 N.Y.S.2d 337 [1st Dept. 2012] [burden shifted when defendant's caretaker testified that he followed the janitorial schedule pursuant to which he would have inspected all the staircases in the morning and afternoon, mopped the stairs any time he encountered a wet condition, replaced any light bulbs that were not functioning, and reported the condition to his supervisor]; Raghu v. New York City Hous. Auth., 72 AD3d 480, 897 N.Y.S.2d 436 [1st Dept. 2010] [janitor's testimony that his regular routine included cleaning the stairwell between 8:00 A.M. and 8:30 A.M., and that he did not observe any powder, was sufficient to shift the burden to plaintiff of demonstrating the existence of questions of fact].)
To demonstrate lack of constructive notice, a defendant must "produc[e] 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" (Ross v Betty G. Reader Revocable Trust, 86 AD3d 419, 421, 927 NYS2d 49 [1st Dept. 2011].) However, vague testimony as to general cleaning practices lacking specific details is generally not sufficient to establish an entitlement to judgment in the movant's favor. (Birnbaum v. New York Racing Ass'n, Inc., 57 AD3d 598,598-99, 869 N.Y.S.2d 222 [2d Dept. 2008] [defendant failed to meet its burden on the issue of lack of constructive notice as there was no "evidence regarding any particularized or specific inspection or stair-cleaning procedure in the area of the plaintiff's fall on the date of the accident."])
Defendants have established the absence of actual notice, as well as the absence of any evidence that they caused or created the alleged condition. While defendants assert that the showers were cleaned daily, there is no particularized evidence as to the cleaning procedure which were followed. (Birnbaum v. New York Racing Ass'n, Inc., 57 AD3d 598, supra.) Moreover, there was no testimony by any person who actually performed an inspection on the day of the accident, or within a reasonable time prior to the accident. The defendants' witnesses testified to general procedures, but not to cleaning logs or any evidence that those procedures were actually followed prior to the accident. (Perez v River Park Bronx Apts., Inc., 168 AD3d 465, 91 N.Y.S.3d 78 [1st Dept. 2019] [absence of evidence of inspection as to establish lack of constructive notice].) Moreover, there was no testimony that during cleaning, the showers were filled with water, and that black water did not "back up" from the drain, so as to establish the [*3]absence of the defective condition.
Accordingly, it is hereby,
ORDERED that the motion is denied.
This is the Decision and Order of the Court.
Dated: October 5, 2020
Adrian Armstrong, A.J.S.C.
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