Capers v. N.Y.C. Hous. Auth., 6660

• Decision Date: 24 May 2018
• Docket Number: Index 301499/15,6660
• Citation: 161 A.D.3d 629,78 N.Y.S.3d 28
• Parties: Shantel CAPERS, Plaintiff–Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 629

78 N.Y.S.3d 28

Shantel CAPERS, Plaintiff–Respondent,

v.NEW YORK CITY HOUSING AUTHORITY, Defendant–Appellant.

6660

Index 301499/15

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

ENTERED: MAY 24, 2018

Herzfeld & Rubin, P.C., New York (Linda M. Brown of counsel), for appellant.

Ephrem J. Wertenteil, New York, for respondent.

Friedman, J.P., Gische, Andrias, Kern, Oing, JJ.

Order, Supreme Court, Bronx County (Llinet M. Rosado, J.), entered on or about September 11, 2017, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff testified that on the day of the accident (Thanksgiving) she took the stairs down from the third floor and they were dry. This was sometime between 11:30 a.m. and noon that day. When she returned some twenty minutes later, sometime between 11:50 a.m. and 12:20 p.m., plaintiff walked up the same flight of stairs. On her way up, she noticed there was some liquid or water on the steps and she sidestepped the puddle. Later that day, at 3 p.m., plaintiff took the same flight of stairs a third time, this time with her son. Plaintiff testified that as she walked down the stairs at 3 p.m. she slipped and fell. Her testimony is that she slipped on water or some liquid substance that had no smell and that it was in the same location on the stairs where she had previously observed a puddle earlier that afternoon.

Defendant denies that it had actual notice of the condition alleged. Defendant's building caretaker testified that she inspected the staircase twice that day, following an established schedule. Her first inspection was at approximately 8:20 a.m. and her second inspection was at 12:30 p.m. The caretaker denied having seen any liquid or water on the steps either time and defendant also contends no one made any complaints about a wet condition on the stairs that day.

Summary judgment was not appropriate, and the motion was correctly denied. Defendant failed to satisfy its prima facie burden of showing the absence of actual notice of a dangerous condition on the steps upon which plaintiff allegedly slipped and fell (see generally Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ). The conflicting testimony as to whether or not there was water on the steps at the time the caretaker's second inspection implicates issues of credibility. If, as plaintiff claims, there was water on the steps at or...