PEREZ v. River Park Towers Associates, et al., Defendants. (2019)

Defendants established prima facie that they did not cause, create or have actual or constructive notice of the wet condition on the staircase on which plaintiff allegedly slipped and fell (see Pagan v. New York City Hous. Auth., 121 A.D.3d 622, 996 N.Y.S.2d 10 [1st Dept. 2014] ).  The building superintendent testified that he had no knowledge of the condition and received no complaints about it on the day of the accident.  On the issue of constructive notice, although he described a reasonable cleaning and inspection routine (see Harrison v. New York City Tr. Auth., 94 A.D.3d 512, 514, 941 N.Y.S.2d 622 [1st Dept. 2012] ), there was no evidence when the stairs were last inspected or cleaned before plaintiff's accident so as to satisfy defendant's burden (see Sager v. Waldo Gardens Inc., 166 A.D.3d 408, 87 N.Y.S.3d 27[1st Dept. 2018];  Guzman v. Broadway 922 Ent., LLC, 130 A.D.3d 431, 432, 12 N.Y.S.3d 92 [1st Dept. 2015];  Sartori v. JP Morgan Chase Bank N.A., 127 A.D.3d 1157, 1158, 7 N.Y.S.3d 548 [2d Dept. 2015] ).

Plaintiff's deposition testimony offered in support of defendant's motion, however, established that the water condition did not exist for a sufficient period of time to discover and remedy the problem (see Pagan, 121 A.D.3d at 623–624, 996 N.Y.S.2d 10).  Thus, there was neither actual nor constructive notice of the wetness.  Although plaintiff testified that she had complained about a wet condition on the stairs on three occasions between 2009 and 2013, she presented no evidence of a recurring condition unaddressed by defendants.  Plaintiff also testified that she had no reason to believe that the stair was wet when she left her apartment at 5 p.m. and that she slipped on the stairs when she returned, less than an hour later.  Thus, any wet condition was present for less than an hour, and might have been there only minutes or seconds before plaintiff slipped on it (see Harrison, 94 A.D.3d at 513–514, 941 N.Y.S.2d 622).  Plaintiff failed to raise any issue of fact requiring a trial.

Plaintiff's argument that the absence of a handrail on both sides of the staircase raises an issue of fact as to defendants' negligence is speculative, as there is no evidence that the absence of a handrail played any role in her accident (see Jenkins v. New York City Hous. Auth., 11 A.D.3d 358, 359–360, 784 N.Y.S.2d 32 [1st Dept. 2004] ).