ROONEY v. Giant Taping & Plastering, Inc., et al., Defendants. (2020)

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about August 23, 2018, which, to the extent appealed from as limited by the briefs, granted defendants-respondents' motions for summary judgment dismissing the complaint and all cross claims against them, unanimously affirmed, without costs.

Plaintiff alleges that she sustained injuries after stepping on a nail embedded in a piece of wood on the floor of her apartment, during the time that her apartment was being renovated by the building's owner, defendant George Hardy St. Francis Apartments LLC (George Hardy).  Defendant Notias Construction Inc. (Notias) was retained as the general contractor for the renovation, and Notias hired defendants MAC Construction of Jackson Heights Inc. (MAC) and Neptune Mechanical Inc. (Neptune) as subcontractors.

The court properly granted the defendants' respective motions for summary judgment dismissing the complaint.  Defendants George Hardy and Wavecrest Management Team (Wavecrest), the property manager, do not dispute that they owed plaintiff a duty to maintain the premises in a reasonably safe condition (Kellman v. 45 Tiemann Assoc., 87 N.Y.2d 871, 872, 638 N.Y.S.2d 937, 662 N.E.2d 255 [1995]), but they demonstrated prima facie that they did not create or have actual or constructive notice of the specific presence of any debris with embedded nails on the floor (see Piacquadio v. Recine Rlty. Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 646 N.E.2d 795 [1994];  Beck v. J.J.A. Holding Corp., 12 A.D.3d 238, 240, 785 N.Y.S.2d 424 [1st Dept. 2004], lv denied 4 N.Y.3d 705, 792 N.Y.S.2d 898, 825 N.E.2d 1093 [2005]).  Plaintiff's contention that the owner and manager had notice of a recurring condition of debris left on the floor of her apartment is unavailing, because “a ‘general awareness’ that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused plaintiff's [injury]” (Piacquadio, 84 N.Y.2d at 969, 622 N.Y.S.2d 493, 646 N.E.2d 795 [internal citation omitted];  see also Solazzo v. New York City Tr. Auth., 21 A.D.3d 735, 736, 800 N.Y.S.2d 698 [1st Dept. 2005], affd 6 N.Y.3d 734, 810 N.Y.S.2d 121, 843 N.E.2d 748 [2005]).  To the extent that the subcontractor defendants owed a duty of care to plaintiff (see generally Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 139, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002]), defendant Notias demonstrated it did not engage in any renovation work that could have left behind a nail embedded in a piece of wood, and Neptune and MAC each demonstrated, with the admission of work logs, and the testimony of Notias's project manager, that their assignments were completed and inspected at least six days before plaintiff's accident (see Buckley v. J.A. Jones/GMO, 38 A.D.3d 461, 462, 832 N.Y.S.2d 560 [1st Dept. 2007];  Asare v. Ramirez, 5 A.D.3d 193, 194, 772 N.Y.S.2d 810 [1st Dept. 2004]).

It would require speculation for a jury to conclude that any of the defendants created a hazardous condition in plaintiff's apartment, i.e.—leaving behind a piece of wood with a nail embedded in it, or had notice of its existence (see Beckford v. New York City Hous. Auth., 84 A.D.3d 441, 441, 922 N.Y.S.2d 72 [1st Dept. 2011]).  Moreover, plaintiff testified that she did not take any photographs of the piece of wood, but instead threw it out after the accident.