BEN AHARON v. M.E. Sabosik Associates, Appellant-Respondent. (2007)

Appeals from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered September 9, 2005.   The order, insofar as appealed from, denied defendant/third-party defendant M.E. Sabosik Associates' motion for summary judgment dismissing the complaint and all claims against it, and, as limited by the brief, denied that branch of defendant/third-party plaintiff New York City Saks, LLC's motion seeking summary judgment dismissing the complaint.

Order, insofar as appealed from, reversed without costs, and motions by the defendant/third-party plaintiff New York City Saks, LLC and by the defendant/third-party defendant M.E. Sabosik Associates for summary judgment granted.

Plaintiff initially instituted this action against New York City Saks, LLC (Saks) to recover damages sustained when she slipped and fell on an employee staircase in the premises owned and maintained by Saks. Saks thereafter commenced third-party actions for indemnification against the contractor, J. Tucci Construction Co. (Tucci), and its subcontractor, M.E. Sabosik Associates (Sabosik), which had performed repairs to the staircase approximately three months prior to plaintiff's fall.   Subsequently, plaintiff amended her complaint to include Tucci and Sabosik as defendants.   Tucci and Sabosik cross-claimed against Saks. Thereafter, Saks moved, inter alia, for summary judgment dismissing the complaint, and Sabosik moved for summary judgment dismissing the complaint and all claims as against it.   The court's denial of said relief is the subject of this appeal.

 In a slip and fall case, the plaintiff must establish that the defendant created the condition that caused the accident or that the defendant had actual or constructive notice of the condition (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986];  Roussos v. Ciccotto, 15 A.D.3d 641, 792 N.Y.S.2d 501 [2005];  Mullin v. 100 Church LLC, 12 A.D.3d 263, 784 N.Y.S.2d 545 [2004] ).   Where, as here, a defendant moves for summary judgment, it is required to establish, as a matter of law, that it did not cause the condition or have actual or constructive notice thereof (Scott v. Beverly Hills Furniture, 30 A.D.3d 577, 817 N.Y.S.2d 381 [2006];  West v. DeJesus, 306 A.D.2d 402, 760 N.Y.S.2d 885 [2003];  see also Goldman v. Waldbaum, Inc., 248 A.D.2d 436, 669 N.Y.S.2d 669 [1998] ).   Only after the defendant has satisfied this threshold burden will the court examine the sufficiency of the plaintiff's opposition (see Joachim v. 1824 Church Ave., Inc., 12 A.D.3d 409, 784 N.Y.S.2d 157 [2004];   Colt v. Great Atlantic & Pacific Tea Company, 209 A.D.2d 294, 618 N.Y.S.2d 721 [1994];  see also Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).

 Here, defendants' submissions, which included plaintiff's own deposition testimony, were sufficient to establish defendants' entitlement to judgment as a matter of law.   Through their affidavits and the exhibits attached thereto, Saks and Sabosik established that the stairs were repaired by Tucci and its subcontractor, Sabosik.   The repairs were completed approximately three months prior to the accident and Saks never received any complaint regarding the stairs' condition.   Although there is no proof of any “inspection” during the intervening period, no such proof was required where defendant Saks submitted plaintiffs' own deposition testimony, in which she acknowledged that she used the stairs on a daily basis prior to her fall and had not observed any defect in them.   On this record, we conclude that defendants satisfied their burden of showing, prima facie, that they did not cause the condition, that the repairs were not defective and that defendant Saks had no actual or constructive notice of the defect.

 Moreover, it cannot be said that plaintiff raised a triable issue of fact as to whether Saks had constructive notice of the condition.   To constitute constructive notice, the defect must be “visible and apparent,” and it must have existed for a “sufficient length of time prior to the accident” (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] ).   Evidence of wear and tear is usually sufficient to establish that the hazardous condition existed over a period of time (id.).   Here, however, the record contains no proof as to how long the defect existed and nothing in the nature of the defect suggests that it existed for any length of time.   Plaintiff never described the defect as worn and to conclude otherwise based on the type of defect-a broken step exposing a bent, semicircular piece of metal strip-is speculative.   Accordingly, the order should be reversed and summary judgment granted in favor of the moving defendants.

In the case at bar, it is undisputed that defendant/third-party plaintiff New York City Saks, LLC (Saks), as owner, controlled the subject premises and that it had the stairs repaired three months prior to the instant accident.   The stairway was used by Saks' employees, and Saks had a duty to keep it in a reasonably safe condition (Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868 [1976] ).   In support of its motion for summary judgment, Saks attached a deposition of its general manager responsible for maintenance and repairs to establish that the repairs were properly completed and that it had not received any notice, actual or constructive, of the defect.   The deposition was insufficient to establish that the regional manager personally inspected the work and failed to demonstrate that there was a procedure in place whereby he would receive actual or constructive notice of any complaints.   Since Saks' moving papers failed to make a prima facie showing that the repairs were not defective and that it had no notice, actual or constructive, of the condition that caused the accident, it failed to satisfy its burden.

The motion by defendant/third-party defendant M.E. Sabosik Associates (Sabosik) for summary judgment was also properly denied as Sabosik failed to make a prima facie showing that it did not cause the subject defect.   I note that while Sabosik's moving papers speculated that other contractors may have subsequently worked on the stairwell, no evidence was presented to establish that such was the case.   In any event, plaintiff raised a triable issue of fact.   Although Sabosik alleged that it merely replaced the then-existing rubber treads with new rubber treads, said allegation was contradicted by plaintiff in her examination before trial wherein she described the defect as a semi-circular piece of metal strip that was bent and that a portion of the step was missing.   Indeed, the court below noted that the type of defect, as described by plaintiff, was not the type that would appear suddenly.

WESTON PATTERSON, J.P., and GOLIA, J., concur. RIOS, J., dissents in a separate memorandum.