ROBINSON v. MTA (2019)

Order, Supreme Court, New York County (Lisa A. Sokoloff, J.), entered May 31, 2018, which, to the extent appealed from, granted defendant MTA New York City Transit Authority's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff failed to raise an issue of fact in opposition to defendant's prima facie showing that it neither created nor had notice of the puddle on a staircase landing at a subway station that allegedly caused plaintiff to slip and fall (see Rosario v. Prana Nine Props., LLC, 143 A.D.3d 409, 409, 38 N.Y.S.3d 182 [1st Dept. 2016] ).  Plaintiff submitted no evidence showing either that defendant had actual notice before plaintiff's accident that the drain at the bottom of the staircase on which plaintiff fell had become clogged or that the drain became clogged so frequently as to be a recurring condition (see Early v. Hilton Hotels Corp., 73 A.D.3d 559, 562, 904 N.Y.S.2d 367 [1st Dept. 2010] ).

Under the circumstances of this case, the storm in progress doctrine did not apply (see Toner v. National Railroad Passenger Corp., 71 A.D.3d 454, 894 N.Y.S.2d 873 [1st Dept. 2010];  Hilsman v. Sarwil Assoc. LP, 13 A.D.3d 692, 786 N.Y.S.2d 225 [3rd Dept. 2004] ).

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