PRISCO v. LONG ISLAND UNIVERSITY (1999)

In an action to recover damages for personal injuries, etc., the defendants Long Island University and R.F. Box Service Corp. separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Suffolk County (Berler, J.), dated December 8, 1997, as denied their respective motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, the appellants' motions are granted and, upon searching the record, the provision which denied the motion of the defendant Sisters of St. Joseph for summary judgment dismissing the complaint and all cross claims against it is deleted, that motion is granted, and the complaint is dismissed in its entirety.

The plaintiff Jo-Ann Prisco allegedly slipped and fell while ascending the stairway in a building leased by the defendant Long Island University (hereinafter LIU) from the defendant Sisters of St. Joseph (hereinafter the owner).   The defendant R.F. Box Service Corporation (hereinafter R.F. Box) provided custodial services for the building under a contract with the owner.   In this personal injury action, the plaintiffs allege, inter alia, that an employee of R.F. Box created a dangerous condition by mopping the stairs.   The Supreme Court denied separate motions by all three defendants for summary judgment dismissing the complaint.

 The law is clear that a plaintiff in a slip and fall case must demonstrate the existence of a dangerous condition and that the defendant created the condition or had actual or constructive notice of it (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Kraemer v. K-Mart Corp., 226 A.D.2d 590, 641 N.Y.S.2d 130;  Lowrey v. Cumberland Farms, 162 A.D.2d 777, 557 N.Y.S.2d 689).   In moving for summary judgment, the defendants submitted evidence indicating that the injured plaintiff never actually saw any water on the stairs or anywhere else, but assumed that the stairs were wet because her hands were damp when she stood up after falling.   The defendants also established that it was the practice of R.F. Box not to mop or wax the floors or stairs while school was in session.   This evidence was sufficient to demonstrate prima facie that the defendants were not negligent (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Lowrey v. Cumberland Farms, supra).

 In opposition, the plaintiffs submitted an affidavit by a professional engineer indicating that the condition of the stairs constituted a violation of the New York State Uniform Fire Prevention and Building Code (9 NYCRR 765.4 [a] [9] ).   The plaintiffs concede, however, that this code provision might not apply to the building in question, and it was the plaintiffs' burden to prove that it did (see, Lester v. Waterman, 242 A.D.2d 683, 664 N.Y.S.2d 927).   The remainder of the plaintiffs' claims constitute speculation as to the cause of the injured plaintiff's fall.   Accordingly, the Supreme Court should have granted the defendants' motions for summary judgment.   Although the owner did not appeal from the order, this court has the power to search the record and grant summary judgment to a nonappealing party (see, CPLR 3212[b];  Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d 106, 110-111, 472 N.Y.S.2d 592, 460 N.E.2d 1077;  Tannenbaum v. Republic Ins. Co., 249 A.D.2d 460, 671 N.Y.S.2d 520).

MEMORANDUM BY THE COURT.