Summary
In Williams, we reversed an order granting a property owner's motion for summary judgment holding that because the owner “failed to present competent evidence that [its] janitorial schedule was followed on the day of the accident, it did not show that it lacked constructive notice of the complained-of condition” (id.). Defendant's proof that a janitorial schedule merely existed does not suffice for purposes of showing that it was followed.
Summary of this case from Gautier v. 941 Intervale Realty LLCOpinion
2012-10-25
Arlene WILLIAMS, Plaintiff–Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Respondent.
Arye, Lustig & Sassower, P.C., New York (Mitchell J. Sassower of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondent.
Arye, Lustig & Sassower, P.C., New York (Mitchell J. Sassower of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondent.
GONZALEZ, P.J., MOSKOWITZ, ACOSTA, FREEDMAN, ABDUS–SALAAM, JJ.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered July 6, 2011, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
Plaintiff alleges that she slipped and fell while descending a stairway in her building and trying to avoid a puddle of urine covering some of the steps. Defendant established prima facie that, although it was aware of an ongoing problem of loiterers in the building's stairwell leaving debris, urine and feces, it lacked actual notice of the specific condition, and that it had in place an adequate janitorial schedule for the cleaning of the stairwells. However, since defendant failed to present competent evidence that the janitorial schedule was followed on the day of the accident, it did not show that it lacked constructive notice of the complained-of condition ( see Rodriguez v. 705–7 E. 179th St. Hous. Dev. Fund Corp., 79 A.D.3d 518, 519, 913 N.Y.S.2d 189 [1st Dept. 2010];Ross v. Betty G. Reader Revocable Trust, 86 A.D.3d 419, 421, 927 N.Y.S.2d 49 [1st Dept. 2011];Aviles v. 2333 1st Corp., 66 A.D.3d 432, 887 N.Y.S.2d 18 [1st Dept. 2009];compare Pfeuffer v. New York City Hous. Auth., 93 A.D.3d 470, 940 N.Y.S.2d 566 [1st Dept. 2012] ). The affidavit by the supervisor of caretakers concerning cleaning in the building on the day of the accident was insufficient because it was inconsistent with the supervisor's own testimony that he did not recall whether or not he was responsible for the subject building at the time of the accident ( see Arias v. Skyline Windows, Inc., 89 A.D.3d 460, 931 N.Y.S.2d 870 [1st Dept. 2011] ). In view of defendant's failure to tender sufficient evidence to eliminate any material issues of fact from the case, we need not address the sufficiency of plaintiff's papers in opposition to the motion ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).
We reject defendant's argument that plaintiff was the sole proximate cause of her injuries.