FORD v. CITIBANK (2004)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated September 10, 2002, which granted the motion of the defendant Citibank, N.A., a/k/a Citicorp, for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

 “In general, to impose liability for an injury proximately caused by a dangerous condition created by weather tracked into a building, a defendant must either have created the dangerous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial actions” (Friedman v. Gannett Satellite Info. Network, 302 A.D.2d 491, 755 N.Y.S.2d 412;  see Yearwood v. Cushman & Wakefield, 294 A.D.2d 568, 742 N.Y.S.2d 661;  Negron v. St. Patrick's Nursing Home, 248 A.D.2d 687, 671 N.Y.S.2d 275).   In the instant case, the defendant Citibank, N.A., a/k/a Citicorp (hereinafter Citibank), established its prima facie entitlement to summary judgment as a matter of law by submitting evidence that it took reasonable precautions to remedy wet conditions on its premises caused by a lengthy rainstorm (see Miller v. Gimbel Bros., Inc., 262 N.Y. 107, 186 N.E. 410;  Sook Ja Lee v. Yi Mei Bakery Corp., 305 A.D.2d 579, 761 N.Y.S.2d 78).   In this regard, Citibank provided two mats and mopped its lobby floor within one hour prior to the time that the plaintiff allegedly slipped and fell.   There was no evidence that Citibank created the wet condition, and it “was not obligated to provide a constant remedy to the problem of water being tracked into a building in rainy weather” (Yearwood v. Cushman & Wakefield, supra at 568, 742 N.Y.S.2d 661;  see Spooner v. New York City Tr. Auth., 298 A.D.2d 575, 575-576, 750 N.Y.S.2d 91;  Hussein v. New York City Tr. Auth., 266 A.D.2d 146, 699 N.Y.S.2d 27).   Moreover, Citibank demonstrated that it had no actual notice of the particular accumulation of water on the floor which caused the plaintiff to fall, and in the absence of proof as to how long this specific wet condition existed, there is no evidence to permit an inference that Citibank had constructive notice of the condition (see Yearwood v. Cushman & Wakefield, supra at 568, 742 N.Y.S.2d 661;  Kershner v. Pathmark Stores, 280 A.D.2d 583, 584, 720 N.Y.S.2d 552).

 In opposition, the plaintiff failed to raise a triable issue of fact (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).   The affidavit of the plaintiff's expert was conclusory and unsubstantiated.   Thus, it was insufficient to raise an issue of fact with respect to whether Citibank acted unreasonably on the day of the plaintiff's accident (see Ambrosio v. South Huntington Union Free School Dist., 249 A.D.2d 346, 346-347, 671 N.Y.S.2d 110).   Furthermore, the plaintiff failed to proffer any evidence demonstrating either that Citibank had actual notice of the accumulation of water upon which she fell or that the condition was visible and apparent for a sufficient length of time to impute constructive notice (see Izrailova v. Rego Realty, 309 A.D.2d 902, 902-903, 766 N.Y.S.2d 91;  Chemont v. Pathmark Supermarkets, 279 A.D.2d 545, 720 N.Y.S.2d 148;  Negron v. St. Patrick's Nursing Home, supra at 687, 671 N.Y.S.2d 275).   Accordingly, the Supreme Court properly granted Citibank's motion for summary judgment dismissing the complaint insofar as asserted against it.