BOGLIN v. NEW YORK CITY HOUSING AUTHORITY (2019)

The plaintiff commenced the instant proceeding against the defendant based on a cause of action relating to an incident alleged to have occurred when she struck her head against a hanging metal light fixture cage, within staircase “A” on the fifth floor landing at 175 Alexander Avenue, Bronx, New York, known as the Mitchel Houses and owned and operated by NYCHA.

The defendant, New York City Housing Authority, (NYCHA), moves for an order granting summary judgment in their favor and dismissing the plaintiff's complaint, pursuant to CPLR 3212. The defendant contends NYCHA neither created nor had actual or constructive notice of the condition complained of. Defendant contends that the subject building was cleaned, inspected and maintained on a daily basis pursuant to a janitorial schedule that was followed. In support, the defendant has submitted, among other things, copies of the pleadings; a copy of plaintiff's 50h hearing transcript; a copy of plaintiff's deposition transcript; a copy of NYCHA employee Jose Lopez's deposition transcript; affidavits of NYCHA employees Jose Lopez and Angel Knight; and copies of the 2015 Supervisor of Caretakers' Logbook for the subject building.

Plaintiff opposes the motion and argues that plaintiff has raised triable issues of fact warranting denial. In support, the plaintiff has submitted, among other things, a copy of sections of plaintiff's 50h hearing transcript; a copy of sections of plaintiff's deposition transcript; pictures of the hanging metal cage; the deposition testimony of NYCHA employee Jose Lopez; copies of the 2015 Supervisor of Caretakers' Logbook for the subject building; and an affidavit of Tuwana Boglin. Plaintiff argues that during her deposition that she testified that she was visiting her aunt at the subject building on the date of the accident and that her name was Tuwana. Plaintiff argues that the affidavit of her aunt, Tuwana Boglin, a non-party to this action and a tenant in the subject building at the time of plaintiff's accident and many years before, raises a triable issue of fact because Tuwana Boglin states she “noticed the metal cage cover of the light fixture at the 5th floor landing of stairway “A” was hanging and in a dangerous condition for about 2 or 3 days before plaintiff was struck by it on March 23, 2015.” Further, Tuwana Boglin states she “told the female caretaker of this condition a few days before the accident.” Plaintiff argues that Tuwana Boglin's affidavit directly contradicts Angel Knight's affidavit as to not being aware of any complaints of the dangerous conditions and raises triable issues of fact as to whether NYCHA had actual or constructive notice of the dangerous condition of the hanging metal cage sufficiently in advance of plaintiff's accident for it to correct the dangerous condition.

In reply, defendant argues that the Court must reject the affidavit of Tuwana Boglin because she is an undisclosed notice witness subsequent to the filing of the Note of Issue. Further, defendant argues that Tuwana Boglin's has been tailored to avoid the consequences of plaintiff's earlier testimony and fails to raise genuine issue of fact as to notice.

“A defendant demonstrates lack of constructive notice by producing evidence of its maintenance activities on the day of the accident, and specifically that the dangerous condition did not exist when the area was last inspected or cleaned before plaintiff fell (see Raghu v. NYCHA, 72 AD3d 480[2010]; Vilomar v. 409 E.181st St. HDFC, 50 AD3d 469[2008] ).” Ross v. Betty G. Reader Revocable Trust, 86 AD3d 419 (1st Dept. 2011); Moore v. 1192 Weekes,123 AD3d 456 (1st Dept. 2014). Here, defendant has established its entitlement to summary judgment by submitting evidence including the testimony and affidavit of its supervisor of caretakers and its affidavit of the caretaker assigned to subject building on the date of plaintiff's accident, as to its activities the day before and the day of the accident and when the area of plaintiff's accident was last inspected. Beras v. NYCHA, 118 AD3d 584 (1st Dept. 2014). When a “reasonable cleaning routine” was established and followed liability cannot be imposed. See Harrison v. New York City Transit Authority, 94 AD3d 512 (1st Dept. 2012). The court finds that on this record that the defendant established a prima facie showing to judgment as a matter of law. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 (1985).

Since the defendant has shown its entitlement to summary judgment as a matter of law, the burden shifts to the plaintiff to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial of the action. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). To establish a triable issue of fact exists as to whether NYCHA had constructive notice of the alleged condition, plaintiff must show the defect was visible and apparent and existed for a sufficient period of time prior to the accident. see Gordon v. American Museum of Natural History, 67 AD3d 836 (1986).

Plaintiff has produced no evidence to establish that defendant had notice of the dangerous condition alleged to have existed within staircase “A” on the fifth floor, or that the alleged condition was present “for a sufficient period of time that defendant's employees had an opportunity to discover and remedy the problem.” see Rivera v. 2160 Realty Co., LLC., 4 NY3d 837 (2005). The submission of plaintiff's aunt's affidavit, a previously undisclosed notice witness, for the first time in opposition to defendant's motion for summary judgment is improper and this Court will not consider it. see Garcia v. Good Home Realty, Inc., 67 AD3d 424, 888 NYS2d 40 (1st Dept 2009). The proffered affidavit of Tuwana Boglin “can only be considered to have been tailored to avoid the consequences of plaintiff's earlier testimony and fails to raise a genuine issue of fact as to notice.” see, Rodriguez v. New York City Housing Authority, 304 AD2d 468, 469, 758 NYS2d 53 (1st Dept 2003).

Accordingly, based on the record before the Court; the applicable law; and due deliberation; it is hereby

ORDERED, that the defendant's motion for summary judgment is granted, and plaintiff's complaint is dismissed and it is further

ORDERED that the clerk is directed to enter judgment accordingly; and it is further

ORDERED that the defendant shall serve a copy of this Order with Notice of Entry upon the plaintiff within thirty (30) days of entry of this Order.

This constitutes the decision and order of the Court.

Llinet M. Rosado, J.