Choi v. Olympia & York Water St. Co.

• Decision Date: 19 December 2000
• Citation: 278 A.D.2d 106,718 N.Y.S.2d 42
• Parties: (A.D. 1 Dept. 2000) Keum Choi, et al., Plaintiffs-Respondents, v. Olympia & York Water Street Company, etc., et al., Defendants-Appellants. 2169 - 2170 : FIRST JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 42

718 N.Y.S.2d 42 (A.D. 1 Dept. 2000)

Keum Choi, et al., Plaintiffs-Respondents, v. Olympia & York Water Street Company, etc., et al., Defendants-Appellants.

2169 - 2170

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

December 19, 2000

Kevin M. Gallagher, for plaintiffs-respondents.

Marie R. Hodukavich & Courtney M. Robbins, for defendants-appellants.

Nardelli J.P., Tom, Lerner, Buckley, Friedman, JJ.

Orders, Supreme Court, New York County (Louis York, J.), entered November 19, 1999 and December 27, 1999, which denied defendants' motion and cross-motion for summary judgment, unanimously reversed, on the law, without costs, motion and cross-motion for summary judgment granted and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint.

Arriving at the building in which he was employed, plaintiff slipped and fell en route to the elevator. Although he could not remember whether he saw water on the floor where he fell, plaintiff inferred his fall was caused by water on the floor since it had rained for an hour that morning, he could see footprints on the floor and his clothing and hand were wet after his fall. Plaintiff also testified that mats are usually put down when it rains but that there were not mats on the day he fell, nor were there signs indicating the floor was wet. The IAS court found plaintiff's testimony sufficient to create disputed issues of fact requiring denial of summary judgment on the alternative grounds that defendants had constructive notice of the condition or that the condition was recurring. However, plaintiff's testimony supports neither theory and this action should have been dismissed.

Even were we to assume that water was visible, despite plaintiff's inability to recall seeing water, there is no evidence from which a jury could reasonably conclude that such condition existed for a sufficient period of time to allow defendants to have discovered and remedied it (O'Rouke v. Williamson, Picket, Gross, 260 A.D.2d 260, 261). It is, for example, quite possible that any water on the floor had been tracked into the building by individuals immediately preceding plaintiff. Defendants had no obligation to provide a constant remedy for such a problem (see, Kovelsky v. City University of New York, 221 A.D.2d 234; Hussein v. NYTA, 266 A.D.2d 146; and, Deegan v. 336 East 50th Street Tenants Corp., 216 A.D.2d 59). Although p...