Opinion
No. 2653/11.
2013-02-27
Errol A. MYRICK, Plaintiff, v. GOLDFARB PROPERTIES, and “John Doe”, Defendants.
BERNICE D. SIEGAL, J.
The following papers numbered 1 to 12 read on this motion for an order awarding defendant summary judgment and dismissing the complaint against it with prejudice.
+---------------------------------------------+ ¦PAPERS ¦NUMBERED¦ +------------------------------------+--------¦ ¦Notice of Motion–Affidavits–Exhibits¦1–4 ¦ +------------------------------------+--------¦ ¦Affirmation in Opposition ¦5–9 ¦ +------------------------------------+--------¦ ¦Reply Affirmation ¦10–12 ¦ +---------------------------------------------+
Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:
Defendant Goldfarb Properties(“Goldfarb” or “defendant”) moves for an order pursuant to CPLR § 3212 granting defendant summary judgment and dismissing the complaint as there are no questions of fact warranting a trial.
Facts
The within action arises from an injury which plaintiff Errol Myrick (“Myrick” or “plaintiff”) allegedly sustained when he “fell on stairwell step(s) that were chipped and/or without stripping on the floor, and/or which floor was marble, and/or slick.” Plaintiff claims that the accident occurred on January 18, 2011 at the “2nd floor landing” at 2041 Seagirt Blvd, Far Rockaway, New York, 11691 (the “subject premises”).
Myrick testified at his deposition that he resided in Apartment 3B at the subject premises and that the accident occurred as he was descending from the second floor steps to the lobby.
Myrick further testified that he saw “dampness ... on the steps and on the ground level where I landed” but he did not observe wetness on the steps prior to slipping nor any wetness the day before the accident; and that the elevator was out of service on the date of the accident forcing him to use the stairs.
Defendant submits the deposition transcript of Richard Savino, the Director of Maintenance Operations as the subject premises for approximately seven years. The court notes that the transcript was not executed by Savino. However, a deposition transcript is deemed admissible, although unsigned, when it is certified and plaintiff did not challenge its accuracy in its opposing papers. (See Vetrano v. J. Kokolakis Contracting, Inc., 100 AD3d 984 [2nd Dept 2012]; Boadu v. City of New York, 95 AD3d 918 [2nd Dept 2012].)
Savino testified that his duties included the day to day maintenance of the building; there were no complaints about the staircase for the two years prior to the accident and the staircase would be cleaned twice a day.
Carl Colalella (“Colalella”), the Assistant Supervisor of the subject premises, states in his affidavit that he arrived at the scene following the accident and noticed “some dampness” on the bottom of the stairs. Colalella also states that it was raining all day prior to and through the time of the accident. Colaella also noted that there were no defects, debris, obstructions or other problems with the steps.
Irving Morales (“Morales”), the Superintendent of the subject premises, noted that the elevator was in working condition on the date of the accident.
Gary Adams (“Adams”), the Managing Director of Security, at the subject premises verified the contents of the Incident Report that was taken by Curtis Sargent, a security guard who is no longer employed by the defendant.
Defendant's motion for summary judgment dismissing the complaint is denied as more fully set forth below.
Discussion
To demonstrate entitlement to summary judgment in a slip-and-fall case, the defendant had to establish that it maintained the premises in a reasonably safe condition and that it did not create a dangerous or defective condition on the property or have either actual or constructive notice of a dangerous or defective condition for a sufficient length of time to remedy it. (Villano v. Strathmore Terrace Homeowners Ass'n, Inc., 76 AD3d 1061 [2nd Dept 2010].) “To constitute constructive notice a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the defendant] to discover and remedy it.” (McMahon v. Gold, 78 AD3d 908. 909 [2nd Dept 2010] quoting Gordon v. American Museum of Natural History, 67 N.Y.2d 836 [1986].) “The issue of whether a dangerous condition is open and obvious is fact-specific, and usually a question for a jury.” (Shah v. Mercy Medical Center, 71 AD3d 1120 [2nd Dept 2010].)
Although landowners have no obligation to provide a constant remedy for conditions created by tracked-in rainwater, (see Musante v. Department of Educ. of City of New York, 97 AD3d 731 [2nd Dept 2012]; Razla v. Surgical Sock Shop II, Inc., 70 AD3d 916 [2nd Dept 2010] ) “[t]o meet its initial burden on the issue of lack of constructive notice, [a landowner] must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.” (Feola v. City of New York, 102 AD3d 827, 827 [2nd Depet January 23, 2013]; quoting Birnbaum v. New York Racing Ass'n, Inc., 57 AD3d 598, 598 [2nd Dept 2008]; Williams v. SNS Realty of Long Island, Inc., 70 AD3d 1034 [2nd Dept 2010].)
It is undisputed that it rained the day of the accident as the defendant concedes in its papers that it rained on the day of the accident and Colalella stated that he noticed dampness on the bottom of the stairs. Defendant, relying on the deposition testimony of Savino and the affidavits of Colalella, Morales and Adams, failed to sustain its burden as it offered no evidence as to what, if any, cleaning procedures or inspection procedures were performed relative to the time when plaintiff fell. ( Feola v. City of New York, at 827.) Savino merely testified that a “porter” would clean the staircase twice a day, once in the morning and once in the afternoon. The defendant failed to submit an affidavit from the “porter” attesting to when the area was last cleaned.
In addition, defendant mistakenly contends that it is entitled to summary judgment under the “storm in progress” rule. Under the storm in progress' rule, a landowner will not be held liable for accidents occurring as a result of a rain storm until an adequate period of time has passed following the cessation of the storm, within which time the owner has the opportunity to ameliorate the hazards caused by the storm. (Smith v. Christ's First Presbyterian Church of Hempstead, 93 AD3d 839 [2nd Dept 2012]; see also Ali v. Village of Pleasantville, 2012 WL 1521851 [2nd Dept 2012]; Dubensky v. 2900 Westchester Co., LLC, 27 AD3d 514 [2nd Dept 2006].) The “storm in progress” rule diminishes a landowner's duty during an ongoing rain storm to the extent that a landowner is “not required to “cover all of their floors with mats, nor to continuously mop up all moisture resulting from tracked-in precipitation.” (Dubensky v. 2900 Westchester Co., LLC, 27 AD3d 514 [2nd Dept 2006].) However, at the summary judgment stage, the use of the storm in progress doctrine does not “completely eliminate a landowner's duty to remedy hazardous storm-related conditions occurring inside a building.” (Kuznicki v. Beth Jacobs Teachers Seminary of America Inc., 958 N.Y.S.2d 272 [Supreme Court Kings County, January 9, 2013] citing LoSquadro v. Roman Catholic Archdiocese of Brooklyn, 253 A.D.2d 856 [2nd Dept 1998].) In addition, the use of the “storm in progress” rule has been reserved for snow/sleet/ice storms and has yet to be extended for rain storms. ( See Toner v. National R.R. Passenger Corp., 71 AD3d 454 [1st Dept 2010][Andrias and McGuire, JJ, concurring]; Hilsman v. Sarwil Associates, L.P., 13 AD3d 692 [3rd Dept 2004]; Brown v. Johnson, 241 A.D.2d 829 [3rd Dept 1997].) The court sees no reason to extend the “storm in progress” rule to the within matter.
In light of defendant's failure to meet its burden, it is unnecessary to determine whether the plaintiff's papers submitted in opposition were sufficient to raise a triable issue of fact. ( Feola v. City of New York, at 827 citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1996].)
Conclusion
For the reasons set forth above, defendant's motion for summary judgment dismissing plaintiff's complaint is denied.