ARGUETA v. 3251 THIRD AVENUE LLC 308 312 LLC (2022)

Plaintiff brings this personal injury case against 3251 Third Avenue LLC (“3251 Third Avenue”) and 308-312 West 36th Street, LLC (collectively referred to as “Defendants”). Defendants now move for summary judgment pursuant to CPLR 3212, dismissing the plaintiff's complaint against them.

Plaintiff seeks damages for injuries she allegedly sustained when a ceiling tile fell and struck her in the ladies' room located at 3251 Third Avenue, Bronx, New York on May 4, 2017. At the time of the incident, plaintiff worked for the Puerto Rican Family Institute, a tenant in the subject building. At around 6:00 p.m. on the accident date, plaintiff entered the third-floor bathroom and as plaintiff made her way into a stall, something suddenly hit her back and then her leg and foot. After she was hit, before leaving the bathroom, plaintiff saw a white ceiling tile on the floor, broken into two pieces. She also looked up at the ceiling and saw a ceiling tile was missing from the drop ceiling, right above where she was entering the stall at the time of her accident. Before leaving the bathroom, plaintiff took two photos with her cell phone: one photo was of the broken white ceiling tile on the floor and the other photo was of the empty area of ceiling where she saw a ceiling tile missing. When plaintiff returned to work after being out of work for a few weeks due to her injuries from this accident, she submitted a written accident description report to the management office, located within the same building.

Plaintiff commenced this action alleging that defendants were negligent in causing a dangerous condition and that the doctrine of res ipsa loquitur applies in this accident.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Winegrad v. New York University Medical Center, 64 NY2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 (1985). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party (Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824 [2014]). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The owner of a premises may be held liable for an accident caused by a dangerous condition on the property if the plaintiff can demonstrate that the owner created the condition or had actual or constructive notice of it (see Hauptner v Laurel Dev., LLC, 65 AD3d 900, 902 [2009]). An owner can be deemed to have constructive notice of a dangerous condition if it is visible and apparent, and if the condition existed for enough time before the accident to permit the owner's employees to discover and remedy the problem (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).

The doctrine of res ipsa loquitur is a rule of evidence that permits an inference of negligence to be drawn solely from the happening of an accident whether the plaintiff can show that, (1) the event is of the kind that ordinarily does not occur in the absence of someone's negligence, (2) the instrumentality that caused the injury is within the defendant's exclusive control and (3) the injury is not the result of any voluntary action by the plaintiff (see Morejon v Rais Const. Co., 7 NY3d 203, 209 [2006]). Here, the defendants established that the doctrine of res ipsa loquitur is inapplicable by submitting evidence that plaintiff's employer cleaned and maintained the subject bathroom pursuant to its lease, and thus, that the defendants did not have the requisite exclusive control over the allegedly defective condition.

In moving for summary judgment, defendants argue that 308-312 West 36th Street, LLC did not own, manage or have any role at the subject building on May 4, 2017, and therefore is not a proper party to this action. Plaintiff has not controverted defendants' argument, therefore, all claims against co-defendant 308-312 West 36th Street, LLC, are dismissed.

The remaining defendant, 3251 Third Avenue contends that it had no notice of the alleged defective ceiling in the bathroom in which plaintiff used at her employment by submitting the deposition testimony of Kiumarz Geula, principal of defendants. Mr. Geula's testimony is that, as the property owner as well as the property manager, he performed a search for records pertaining to the inspection, maintenance and repair of the ceiling for two years prior to, and including, the accident date. He provided an affidavit in which he stated that there were no such records found. Additionally, Mr. Geula stated that he performed a search and did not find any emails or any requests for work orders for work in the third-floor bathroom related to the ceiling tiles or ceiling.

To meet its initial burden on the issue of lack of constructive notice, the defendant must “offer some evidence as to when the area in question was last inspected relative to the [accident]” (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598 [2nd Dept 2008]). Here, the defendant failed to satisfy its initial burden. Defendant failed to proffer evidence from someone with personal knowledge as to when the bathroom ceiling was last inspected before plaintiff's accident. The deposition testimony of the defendant's principal merely referred to the general daily cleaning practices of the defendant. As such, 3251 Third Avenue's failure to show that it did not have constructive notice of the allegedly dangerous condition precludes summary judgment for this defendant in this action.

In opposition to the motion, plaintiff also raises triable issues of fact as to whether the defendant had constructive notice of the purportedly dangerous condition. Plaintiff testified that for a year prior to the accident she would see spaces or gaps in the tiles in the bathroom ceiling and that the ceiling tiles would move or shake, especially when the bathroom door would slam shut. Additionally, plaintiff relies on the testimony of defendant's principal, Mr. Geula, who testified that the third-floor tenant, The Puerto Rican Institute LLC, did not have any responsibility for maintaining the building's ceilings, or for keeping the building's ceilings in good repair. He further testified that his management company was solely responsible for maintaining the ceilings at the building in May 2017. Thus, the record presents an issue of fact as to whether defendant exercised reasonable care in maintaining the ceiling tiles, and whether constructive notice may be imputed.

Accordingly, it is hereby

ORDERED that the motion of defendants pursuant to CPLR 3212 for an order granting summary judgment dismissing all claims is granted only as to co-defendant 308-312 West 36th Street, LLC, and all claims against said defendant are dismissed in its entirety.

This is the Decision and Order of the Court.

Adrian Armstrong, J.