WEISS v. GERARD OWNERS CORP

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Supreme Court, Appellate Division, First Department, New York.

Herbert WEISS, et al., Plaintiffs-Respondents, v. GERARD OWNERS CORP., et al., Defendants-Appellants.

Decided: October 25, 2005

FRIEDMAN, J.P., MARLOW, GONZALEZ, CATTERSON, JJ. Law Office of Vincent D. McNamara, East Norwich (Anthony Marino of counsel), for appellants. Sandra Ruth Schiff, New York, for respondents.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered May 17, 2005, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted.   The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

 Plaintiff alleges that he slipped and fell on a wet floor as he entered defendant's building through a corridor leading from the service entrance to an interior door.   Although it was raining at the time of the incident (8:30 A.M.), and allegedly had been raining, on and off, for some time before, the building's porter gave uncontroverted testimony that the floor of the corridor in question had been dry at about 7:30 A.M.   Since the record provides no nonspeculative basis to determine whether, and for how long, the water was on the floor before plaintiff walked in, or, alternatively, whether plaintiff himself tracked in the moisture on which he slipped, plaintiff has failed to raise a triable issue of fact as to whether defendants created the condition or had actual or constructive notice of it (see O'Rourke v. Williamson, Picket, Gross, Inc., 260 A.D.2d 260, 261, 688 N.Y.S.2d 528 [1999] ).   That it had been raining prior to the incident does not, without more, permit an inference of constructive notice (see Wallace v. Doral Tuscany Hotel, 302 A.D.2d 255, 256, 755 N.Y.S.2d 381 [2003], citing O'Rourke, 260 A.D.2d at 261, 688 N.Y.S.2d 528).   Further, defendants' alleged failure to place matting in the corridor provides no basis for imposing liability on them in the absence of evidence that they created or had actual or constructive notice of the water accumulation (see Tarrabocchia v. 245 Park Ave. Co., 285 A.D.2d 388, 389, 728 N.Y.S.2d 451 [2001], citing O'Rourke, 260 A.D.2d 260, 688 N.Y.S.2d 528, and Crawford v. MRI Broadway Rental, Inc., 254 A.D.2d 68, 678 N.Y.S.2d 491 [1998] ).   Finally, to the extent plaintiff's affidavit attempts to attribute the accident in part to inadequate lighting, such assertions contradict his deposition testimony that he could see the floor “if he wanted to” immediately before he slipped, and therefore are to be disregarded as merely feigning an issue of fact (see Phillips v. Bronx Lebanon Hosp., 268 A.D.2d 318, 320, 701 N.Y.S.2d 403 [2000] ).   Accordingly, defendants are entitled to summary judgment.