PICERNO v. NEW YORK CITY TRANSIT AUTHORITY (2004)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (M. Garson, J.), dated September 24, 2002, which denied its motion, in effect, for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff allegedly sustained injuries when, descending a staircase at a subway station, she slipped and fell on a puddle of water.   It is undisputed that it had been raining on the day of the plaintiff's fall.   The plaintiff commenced the instant action against the defendant New York City Transit Authority.   The defendant moved, in effect, for summary judgment dismissing the complaint.   The Supreme Court denied the motion.   We reverse.

 “To prove a prima facie case of negligence in a slip and fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition” (Kalogerides v. Citibank, 233 A.D.2d 298, 649 N.Y.S.2d 806;  see Bradish v. Tank Tech Corp., 216 A.D.2d 505, 506, 628 N.Y.S.2d 807;  Alvarez v. Compass Retail, 237 A.D.2d 473, 474, 655 N.Y.S.2d 979).

Here, the defendant established its entitlement to judgment as a matter of law (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   In opposition, the plaintiff failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   The affidavit of the plaintiff's expert was speculative, unsubstantiated, and conclusory (see Mestric v. Martinez Cleaning Co., 306 A.D.2d 449, 761 N.Y.S.2d 504;  Hartman v. Mountain Val. Brew Pub, 301 A.D.2d 570, 571, 754 N.Y.S.2d 31;  Scola v. Sun Intl. N. Am., 279 A.D.2d 466, 467, 719 N.Y.S.2d 107;  Koller v. Leone, 299 A.D.2d 396, 397, 751 N.Y.S.2d 266;  Papazian v. New York City Tr. Auth., 293 A.D.2d 658, 658-659, 740 N.Y.S.2d 450;  Glorioso v. Schnabel, 253 A.D.2d 787, 788, 677 N.Y.S.2d 604), and was insufficient to support the plaintiff's claim that the water was caused by structural defects and a faulty drainage system rather than by the precipitation that was falling on the date of the accident (see Papazian v. New York City Tr. Auth., supra).

Therefore, the Supreme Court should have granted the defendant's motion, in effect, for summary judgment dismissing the complaint.

In light of the foregoing, we need not reach the defendant's remaining contention.