RIVERA v. 2160 REALTY CO (2005)

OPINION OF THE COURT

The order of the Appellate Division should be reversed, with costs, the certified question answered in the affirmative and defendant's motion for summary judgment granted.

In this slip and fall case, tenant failed to raise a triable issue of fact on the issue of whether the landlord had constructive notice on any theory of a dangerous condition in the stairwell.   Tenant asserted that while descending the steps at 5:00 A.M., he tripped over a beer bottle.   Yet he acknowledged that the bottle was not on the steps at 8:30 P.M. the night before and no evidence was offered indicating that the landlord was notified of the debris that night or that the bottle was present for a sufficient period of time that defendant's employees had an opportunity to discover and remedy the problem (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ).  “[O]n the evidence presented, the [beer bottle] that caused  plaintiff's fall could have been deposited there only minutes or seconds before the accident and any other conclusion would be pure speculation” (id. at 838, 501 N.Y.S.2d 646, 492 N.E.2d 774).

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.

MEMORANDUM.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur in memorandum.