ORTEGA v. NEW YORK CITY TRANSIT AUTHORITY (1999)

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (I. Aronin, J.), dated May 6, 1998, as denied that branch of its motion which was for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendant's motion which was for summary judgment is granted, and the complaint is dismissed.

 We agree with the defendant that the affidavits of a notice witness and an expert submitted by the plaintiffs in opposition to its motion for summary judgment should not have been considered by the Supreme Court (see, Salzo v. Bedding Showcase, 238 A.D.2d 180, 656 N.Y.S.2d 236;  Mankowski v. Two Park Co., 225 A.D.2d 673, 639 N.Y.S.2d 847;  Robinson v. New York City Housing Authority, 183 A.D.2d 434, 583 N.Y.S.2d 381).   The plaintiffs advised the defendant in 1994 in response to discovery demands that they had no such witnesses, and the plaintiffs filed a note of issue and certificate of readiness for trial in 1995 certifying that discovery proceedings were completed.   The witnesses were not disclosed until more than nine years after the action was commenced, in response to the defendant's motion for summary judgment, and no valid excuse was offered for the delay.

 In any event, the evidence was insufficient to defeat the defendant's motion for summary judgment.   The plaintiff Reyna Ortega allegedly slipped on a “slimy” substance in an underground passageway in a subway station.   There is no evidence that the defendant created or had actual notice of the alleged dangerous condition, or that the condition was visible, apparent, and existed for a sufficient length of time to constitute constructive notice (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Panzella v. Shop Rite Supermarkets, 238 A.D.2d 490, 657 N.Y.S.2d 926;  Rosario v. New York City Tr. Auth., 215 A.D.2d 364, 626 N.Y.S.2d 242).   Furthermore, the evidence was insufficient for a trier of fact to rationally infer that the defendant should have had constructive notice of a condition which the plaintiffs alleged to be a recurring hazard (see, Cellini v. Waldbaum, 262 A.D.2d 345, 691 N.Y.S.2d 569;  Greenwald v. Gerritsen Foodtown Corp., 260 A.D.2d 349, 686 N.Y.S.2d 323;  see also, Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493, 646 N.E.2d 795;  Durney v. New York City Tr. Auth., 249 A.D.2d 213, 671 N.Y.S.2d 262;  Mercer v. City of New York, 223 A.D.2d 688, 637 N.Y.S.2d 456, affd. 88 N.Y.2d 955, 647 N.Y.S.2d 159, 670 N.E.2d 443).

MEMORANDUM BY THE COURT.