PERLONGO v. PARK CITY APARTMENTS INC (2006)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Schulman, J.), dated May 23, 2005, which granted the motion of the defendants Park City 3 & 4 Apartments, Inc., Century Operating Corporation, and Charles Shohet for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The plaintiff slipped on an accumulation of water on the floor of a vestibule in the basement of his apartment building.   He commenced the instant action against, among others, the defendants Park City 3 & 4 Apartments, Inc., Century Operating Corporation, and Charles Shohet, the owners and managers of the building (hereinafter the defendants).   The Supreme Court granted the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.   We affirm.

 The imposition of liability in a slip-and-fall case requires evidence that the defendants created the dangerous condition which caused the accident, or that they had actual or constructive notice of that condition and failed to remedy it within a reasonable time (see Mercer v. City of New York, 88 N.Y.2d 955, 956, 647 N.Y.S.2d 159, 670 N.E.2d 443;  Madrid v. City of New York, 42 N.Y.2d 1039, 399 N.Y.S.2d 205, 369 N.E.2d 761;  Putnam v. Stout, 38 N.Y.2d 607, 612, 381 N.Y.S.2d 848, 345 N.E.2d 319;  Birthwright v. Mid-City Sec., 268 A.D.2d 401, 402, 702 N.Y.S.2d 325;  Pianforini v. Kelties Bum Steer, 258 A.D.2d 634, 635, 685 N.Y.S.2d 804;  Campbell v. Great Atl. & Pac. Tea Co., 257 A.D.2d 642, 684 N.Y.S.2d 572;  Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246, 249, 472 N.Y.S.2d 368, affd. 64 N.Y.2d 670, 485 N.Y.S.2d 252, 474 N.E.2d 612).

 A defendant has constructive notice of a dangerous condition when it is visible and apparent, and existed for a sufficient length of time before the accident such that it could have been discovered and corrected (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837-838, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Negri v. Stop & Shop, 65 N.Y.2d 625, 626, 491 N.Y.S.2d 151, 480 N.E.2d 740;  Golding v. Powell & Dempsey, 247 A.D.2d 510, 669 N.Y.S.2d 323).

 Here, the defendants established their entitlement to judgment as a matter of law by submitting proof that the length of time for which the accumulation of water existed was unknown (see Izrailova v. Rego Realty, 309 A.D.2d 902, 766 N.Y.S.2d 91;  Chemont v. Pathmark Supermarkets, 279 A.D.2d 545, 720 N.Y.S.2d 148;  Seneglia v. FPL Foods, 273 A.D.2d 221, 709 N.Y.S.2d 842).   The evidence submitted by the plaintiff in opposition failed to raise a triable issue of fact as to whether the accumulation of water existed for a period of time sufficient to impute constructive notice to the defendants (see Araujo v. Brooklyn Martial Arts Academy, 304 A.D.2d 779, 758 N.Y.S.2d 401;  Chemont v. Pathmark Supermarkets, supra;  Dwoskin v. Burger King Corp., 249 A.D.2d 358, 671 N.Y.S.2d 494;  Davis v. Supermarkets Gen. Corp., 205 A.D.2d 730, 731, 613 N.Y.S.2d 701;  Pirillo v. Longwood Assoc., 179 A.D.2d 744, 579 N.Y.S.2d 120).   Contrary to the plaintiff's contention, the deposition testimony of the defendants' employees established, at most, that the defendants had a general awareness that water might be tracked into the vestibule when it rained.   Such a general awareness is insufficient to impute constructive notice of a particular dangerous condition to the defendants (see Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 646 N.E.2d 795;  Gloria v. MGM Emerald Enters., 298 A.D.2d 355, 356, 751 N.Y.S.2d 213;  McDuffie v. Fleet Fin. Group, 269 A.D.2d 575, 703 N.Y.S.2d 510).

Although we have recognized that a “ ‘defendant who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of the condition’ ” (Freund v. Ross-Rodney Hous. Corp., 292 A.D.2d 341, 342, 738 N.Y.S.2d 612 quoting Osorio v. Wendell Terrace Owners Corp., 276 A.D.2d 540, 714 N.Y.S.2d 116;  see Clark v. Chau Shing Wong, 293 A.D.2d 640, 740 N.Y.S.2d 443;  Sweeney v. D & J Vending, 291 A.D.2d 443, 444, 737 N.Y.S.2d 388;  Padula v. Big V Supermarkets, 173 A.D.2d 1094, 1095-1096, 570 N.Y.S.2d 850), the plaintiff's argument in this regard is not properly before this court as it is being raised for the first time on appeal (see Gammal v. La Casita Milta, 5 A.D.3d 630, 774 N.Y.S.2d 771;  Sandoval v. Juodzevich, 293 A.D.2d 595, 595-596, 740 N.Y.S.2d 217;  Mourounas v. Shahin, 291 A.D.2d 537, 737 N.Y.S.2d 647;  Weber v. Jacobs, 289 A.D.2d 226, 733 N.Y.S.2d 910).   In any event, the defendants were “not obligated to provide a constant remedy to the problem of water being tracked into a building in rainy weather” (Yearwood v. Cushman & Wakefield, 294 A.D.2d 568, 568, 742 N.Y.S.2d 661;  see Ford v. Citibank, N.A., 11 A.D.3d 508, 509, 783 N.Y.S.2d 622;  Spooner v. New York City Tr. Auth., 298 A.D.2d 575, 575-576, 750 N.Y.S.2d 91).   Moreover, even if the defendants were aware that the accumulation of water on the floors of their building during a steady rain was a recurring condition, the evidence relied upon by the plaintiff to raise a triable issue of fact as to whether there was a known recurrence was not sufficiently time or site-specific to support a claim of constructive notice (see Yearwood v. Cushman & Wakefield, supra;  see also Dember v. Winthrop Univ. Hosp., 272 A.D.2d 431, 708 N.Y.S.2d 330;  McDuffie v. Fleet Fin. Group, supra;  cf. Fielding v. Rachlin Mgt. Corp., 309 A.D.2d 894, 766 N.Y.S.2d 381).

Accordingly, the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them was properly granted.