Opinion
11227-11227A Index 157297/16
03-10-2020
Diana REYES, Plaintiff–Appellant, v. LATIN AMERICAN PENTECOSTAL CHURCH OF GOD INC., Defendant–Respondent.
Brand Brand Nomberg & Rosenbaum LLP, New York (Brett J. Nomberg of counsel), for appellant. Molod Spitz & DeSantis P.C., New York (Marcy Sonneborn of counsel), for respondent.
Brand Brand Nomberg & Rosenbaum LLP, New York (Brett J. Nomberg of counsel), for appellant.
Molod Spitz & DeSantis P.C., New York (Marcy Sonneborn of counsel), for respondent.
Gische, J.P., Webber, Gesmer, Kern, JJ.
Order, Supreme Court, New York County (David Benjamin Cohen, J.), entered July 18, 2019, which granted the motion of defendant Latin American Pentecostal Church of God Inc. for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied. Order, same court and Justice, entered March 13, 2019, which denied plaintiff's motion to strike defendant's pleadings, unanimously affirmed, without costs.
Plaintiff alleges that she fell and sustained injuries as a result of a slippery condition on two steps in the bathroom of a building owned and managed by defendant. Supreme Court granted defendant's motion, finding that plaintiff failed to identify the cause of her fall.
Although plaintiff did not have personal knowledge of what caused her to fall, she was able to sufficiently identify the alleged defect through the testimony of an eyewitness who observed, after plaintiff fell, that there was water on the steps, as well as a "soaking" wet piece of cardboard at the bottom of the steps (see McRae v. Venuto, 136 A.D.3d 765, 766, 24 N.Y.S.3d 745 [2d Dept. 2016] ; Izaguirre v. New York City Tr. Auth. , 106 A.D.3d 878, 878, 966 N.Y.S.2d 122 [2d Dept. 2013] ).
Defendant submitted no evidence to show when the bathroom was last cleaned and inspected prior to plaintiff's fall, and therefore failed to establish prima facie that it did not have constructive notice of the alleged dangerous condition (see Edwards v. Wal–Mart Stores, 243 A.D.2d 803, 662 N.Y.S.2d 855 [3rd Dept. 1997] ; Van Steenburg v. Great Atl. & Pac. Tea Co. , 235 A.D.2d 1001, 652 N.Y.S.2d 893 [3rd Dept. 1997] ). Moreover, defendant's own evidence indicates that there may have been a recurring, but unaddressed, problem with flooding in the bathroom, raising a triable issue as to whether it may be charged with constructive notice of a wet, slippery condition (see Talavera v. New York City Tr. Auth. , 41 A.D.3d 135, 836 N.Y.S.2d 610 [1st Dept. 2007] ; O'Connor–Miele v. Barhite & Holzinger, 234 A.D.2d 106, 650 N.Y.S.2d 717 [1st Dept. 1996] ). The evidence submitted by defendant did not eliminate triable issues as to whether it was negligent under common-law standards for failing to install safety devices or a warning on the stairs (see Branch v. SDC Discount Store, Inc. , 127 A.D.3d 547, 8 N.Y.S.3d 61 [1st Dept. 2015] ).
Supreme Court providently declined to grant plaintiff's motion to strike the answer, as the record does not demonstrate that defendant willfully and contumaciously refused to obey disclosure orders (see Rodriguez v. United Bronx Parents, Inc. , 70 A.D.3d 492, 895 N.Y.S.2d 57 [1st Dept. 2010] ).