JONES v. RIVER PARK RESIDENCES (2025)

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about July 3, 2024, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff's inability to identify the cause of her fall does not warrant dismissal of the complaint, considering that she testified that she was unconscious after her fall and had no recollection of slipping.  A jury could reasonably infer that plaintiff slipped and fell in the bathtub because of a dripping faucet.  Plaintiff testified that the faucet had been leaking, even while it was off and after the building management's repeated attempts to fix it, and that this problem had been recurring since renovations began in 2012, including two weeks before the accident (see Matos v. Azure Holding II, L.P., 181 A.D.3d 406, 406, 121 N.Y.S.3d 51 [1st Dept. 2020]).  Plaintiff's affidavit in opposition to the motion, in which she stated that she noticed water in the tub after she regained consciousness, did not create a feigned issue of fact, because, despite defendants’ argument that this contradicted her deposition testimony, they never asked her at her deposition whether she was wet upon awakening (see Muco v. Board of Educ. of the City of N.Y., 203 A.D.3d 610, 611, 162 N.Y.S.3d 736 [1st Dept. 2022]).

Defendants failed to make a prima facie showing that they did not have notice of the leaking faucet (see Villegas v. East 191 St. Hous. Dev. Fund Corp., 233 A.D.3d 636, 637, 222 N.Y.S.3d 448 [1st Dept. 2024]).  Defendants’ showing that there were no work orders or complaints in plaintiff's file regarding the dripping faucet is not dispositive on the issue of notice.  Defendants’ superintendent did not address plaintiff's and her fiancé’s testimony that they orally complained many times about the leaking faucet.  Further, defendants’ maintenance manager testified that he did not search for any information on plaintiff's apartment.  In any event, plaintiff raised an issue of fact through her testimony that her bathtub faucet was repaired two weeks prior to the accident but continued leaking thereafter.

Defendants’ argument that the condition was open and obvious and not inherently dangerous is inapposite.  “[E]ven if a hazard qualifies as ‘open and obvious’ as a matter of law, that characteristic merely eliminates the property owner's duty to warn of the hazard but does not eliminate the broader duty to maintain the premises in a reasonably safe condition” (Westbrook v. WR Activities–Cabrera Mkts., 5 A.D.3d 69, 70, 773 N.Y.S.2d 38 [1st Dept. 2004]).  Plaintiff has not asserted a claim of failure to warn.