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Maria QUINONES, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Defendant.
In this personal injury action, defendant moves for an order pursuant to CPLR § 3212 dismissing the complaint of plaintiff against it, the New York City Housing Authority (“NYCHA”), on the ground that there is no triable issue of fact as NYCHA had no actual or constructive notice of the condition. In support of its motion, and in its statement of material facts, defendant offers, inter alia, the deposition testimony of the plaintiff, dated March 28, 2019; the deposition testimony, dated September 19, 2019, of the caretaker of the property in question, Mr. Medina; supporting affidavit of that caretaker, dated December 15, 2021; and records of the supervisor of caretakers of the housing development at the time the accident occurred, one Mr. Alamo.
Plaintiff, Maria Quinones, commenced this action against defendant on November 22, 2017 alleging that on April 7, 2017, she fell on steps in the stairwell of 471 Swinton Avenue, a NYCHA property in the Bronx, New York. Plaintiff claims that, as she was descending the steps from the seventh to the sixth floor she was caused to slip and fall on wet steps and thereby sustained serious injuries resulting in two surgeries to her left hand. Plaintiff testified that every time it rained, it would leak into her apartment and the stairwell and that she constantly complained to the Housing Authority office about the condition. Similarly, Delia Jiminez, plaintiff's daughter attests that in the one year prior to her mother's accident she personally called NYCHA about four or five times about the leaks on the stairwell. According to Ms. Jiminez, every time it rained or snowed the roof would leak all over the seventh floor down to the sixth floor.
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 ). 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 ).
A party moving for summary judgment must show prima facie an entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Friends of Thayer Loke LLC v Brown, 27 NY3d 1039, 1-043 ). To defeat summary judgment, the party opposing the motion has to show that there is a material question(s) of fact that requires a trial (Zuckerman v City of New York, 49 NY2d 557, 562 ). In deciding a motion for summary judgment, the court should interpret the evidence in a manner that most favors the opposing party (see Kershow v Hospital for Special Surgery, 714 AD3d 75, 82 [1st Dept. 2013]).
“An owner or tenant in possession of realty owes a duty to maintain the property in a reasonably safe condition” (Farror v Teicholz, 773 AD2d 674, 676 [2nd Dept 1991]). To establish a prima facie case in a slip and fall, plaintiff must show that the defendant either created the dangerous condition or had actual or constructive knowledge of the hazard (Lemondo v Sutton, 268 AD2d 383 ). In order to constitute constructive notice, a defect “ ‘must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the owners'] employees to discover and remedy it’ ” (O'Connor-Miele v Borhite & Holzinger, 234 AD2d 106, quoting Gordon v American Museum of Natural History, 67 NY2d 836,837). Moreover, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell (Williams v. N.Y.C. Hous. Auth., 2014 NY Slip Op 05425, ¶ 1, 119 AD3d 857, 857, 990 N.Y.S.2d 549, 550 [App. Div. 2nd Dept.], citing Armijos v Vrettos Realty Corp., 106 AD3d 847, 965 NYS2d 536 ; Goodyear v Putnam/Northern Westchester Bd. of Coop. Educ. Servs., 86 AD3d 551, 927 NYS2d 373 ; Torres v New York City Hous. Auth., 85 AD3d 469, 924 NYS2d 782 ; Love v New York City Hous. Auth., 82 AD3d 588, 919 NYS2d 149 ).
In support of its motion, NYCHA Caretaker, Danis Medina testified that he followed the NYCHA procedures set forth within the janitorial schedule on a daily basis. Mr. Medina testified that sometimes he moved from building to building and that he did not keep records. His testimony did not reflect that he maintained a specific cleaning schedule, except as instructed by a supervisor (NYSCEF Doc. 32. Exh. L, pp. 9-22). When asked about rainwater, Medina first testified that prior to April 7, 2017, rainwater came into the stairs; he then changed his response to indicate that he never saw rainwater in the stairs (NYSCEF Doc. 32, Exh. L, pp. 22-23). In his affidavit sworn to on December 15, 2021, Mr. Medina states that on April 7, 2017 he inspected the building at 8:45 AM and did not observe any wet condition or rainwater condition present on the stairs on that date and time. Mr. Medina further testified that he followed the NYCHA procedures set forth within the janitorial schedule on a daily basis, and that his supervisor's notes for April 7, 2017 confirm that he completed an inspection, and the notes do not indicate that there was a slippery or wet condition in the subject stairwell on that date, or the days preceding April 7, 2017.
Defendant contends that the deposition testimony of both plaintiff and Mr. Medina, along with his affidavit, and NYCHA records, indicate that there were no complaints of flooding or leaking conditions in the subject stairwell for over a year prior to the alleged incident. Defendant's records which were provided in support of the motion are unconclusive, voluminous (see NYSCEF Doc. No. 30), and without specific references to support its contentions. Defendant did not include the affidavit of the supervisor who signed the documents.
Contrary to NYCHA's contention, Medina's testimony regarding the condition of the subject stairwell is not only internally inconsistent, his affidavit as to records is not supported and both are refuted by photographs of the subject stairs covered in water. Plaintiff's daughter has submitted an affidavit attesting that she took these photographs shortly after her mother's accident. These photographs show water on the staircase from the seventh floor to the sixth floor and forming a puddle on the sixth-floor landing. These photographs are time stamped April 7, 2017 between 8:41 AM and 8:47 AM. She also attests that in the year before the plaintiff's accident, she personally called NYCHA four to five times about the leaks on the stairwell. These photographs show stains, discoloration and peeling paint on the landing from possible prior flooding conditions and water damage.
Here, the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law. The defendant's submissions, which included a transcript of the plaintiff's deposition testimony failed to eliminate all triable issues of fact as to whether the defendant had constructive notice of a recurrent dangerous condition, since the plaintiff testified that she verbally complained to the defendant about the condition of the stairwell prior to her accident (see Rivera v Waterview Towers, Inc. 181 AD3d 844, 846 [2nd Dept 2020]).
Assuming arguendo that defendant satisfied its initial burden, plaintiff raised a triable issue of fact regarding notice by submitting her deposition testimony and affidavit from her daughter stating that the water condition was a recurring condition that NYCHA had failed to take reasonable measures to address, despite their repeated complaints (see Hill v Lambert Houses Redevelopment Co., 105 AD3d 642 [1st Dept 2013]).
Moreover, “resolving questions of credibility, determining the accuracy of witnesses, and reconciling the testimony of witnesses are for the trier of fact” (Bykov v Brody, 150 AD3d 808, 809 [2nd Dept 2017]). Thus, “[a] motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility” (Ruiz v Griffin, 71 AD3d 1112, 1115 [2nd Dept 2010]).
The court has considered all remaining arguments and finds them to be without merit.
Accordingly, it is hereby
ORDERED that the motion of defendant pursuant to CPLR 3212 for an order granting summary judgment dismissing all claims against it is denied.
This is the Decision and Order of the Court.
Adrian Armstrong, J.
Response sent, thank you
Docket No: Index No. 31222/2017E
Decided: March 15, 2022
Court: Supreme Court, Bronx County, New York.
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