MEDINA v. 217 LLC (2026)

Plaintiff alleges that she slipped and fell on a wet floor after water that leaked through a skylight accumulated on top of the stairs on the fifth-floor landing at a building owned by defendant.

Defendant failed to establish that it is an out-of-possession landlord with no duty to maintain the premises (see Matias v. New Yorker Hotel Mgt. Co., Inc., 201 A.D.3d 592, 593, 162 N.Y.S.3d 35 [1st Dept. 2022]).  Although defendant asserted that nonparty P.K. Management maintained the premises on a daily basis, defendant did not submit “any primary or other competent evidence” demonstrating that it had relinquished possession or control so as to absolve it of its duty to maintain the premises (id.;  see Villafane v. Industrial Constr. Mgt., Ltd., 137 A.D.3d 526, 526, 25 N.Y.S.3d 886 [1st Dept. 2016]).

Triable issues of fact exist as to whether defendant had actual or constructive notice of the water leakage that caused plaintiff to slip and fall.  Defendant's witness, a building handyman, testified that he inspected the premises every morning, including the morning of the incident, and that he never saw nor received complaints regarding leaks from the skylight.  However, plaintiff testified that it had rained the previous day, as well as the morning of the incident, that her employer, a resident of defendant's building, told her that water had been collecting on that landing when it rained “for many years,” and that plaintiff passed along her employer's complaints to the building's superintendent prior to her accident.  She further testified that, after she fell, she herself saw the water leaking from a light fixture and into the hallway, and her employer's nephew indicated that he too had previously complained about the water leakage.  Plaintiff's failure to notice the wet condition of the floor prior to her fall does “not conclusively establish [defendant's] lack of notice” (Porco v. Marshalls Dept. Stores, 30 A.D.3d 284, 284–285, 817 N.Y.S.2d 268 [1st Dept.2006]).

Although the statements made by plaintiff's employer and the employer's nephew are hearsay, the record indicates that the declarants were not available, and the testimony was properly considered in opposition to defendant's summary judgment motion along with other nonhearsay evidence (see Matter of New York City Asbestos Litig., 190 A.D.3d 589, 590–591, 136 N.Y.S.3d 722 [1st Dept. 2021]).  Moreover, the statements were offered not for the truth of the matter asserted but to show that defendant received information about the leak and was therefore on notice (see Splawn v. Lextaj Corp., 197 A.D.2d 479, 603 N.Y.S.2d 41 [1st Dept. 1993], lv denied 83 N.Y.2d 753, 612 N.Y.S.2d 107, 634 N.E.2d 603 [1994]).

Finally, to the extent defendant seeks dismissal of the alleged statutory violations as a matter of law, its arguments are unavailing.  The record is devoid of sufficient proof that no substantial alterations were made after 1951, which would bring it within the ambit of the Multiple Dwelling Law and the various city, building, and fire codes asserted.  The parties’ conflicting expert opinions as to whether defendant violated these statutes raises questions of fact that cannot be resolved on a motion for summary judgment (see Shillingford v. New York City Tr. Auth., 147 A.D.3d 465, 465, 46 N.Y.S.3d 110 [1st Dept. 2017]).

We have considered defendant's remaining arguments and find them unavailing.