Iddrisu v. 2440 Webb Ave., LLC

• Decision Date: 15 February 2016
• Docket Number: Index No. 24362/2015E
• Citation: 2016 NY Slip Op 32724 (U)
• Parties: HUMU IDDRISU, Plaintiff, v. 2440 WEBB AVENUE, LLC, Defendant.
• Court: New York Supreme Court

2016 NY Slip Op 32724(U)

HUMU IDDRISU, Plaintiff,
v.
2440 WEBB AVENUE, LLC, Defendant.

Index No. 24362/2015E

SUPREME COURT STATE OF NEW YORK COUNTY OF BRONX TRIAL TERM - PART 15

RECEIVED: March 1, 2017
February 15, 2016

Caution: The original source document for this order is unclear and no superior document is available at this time. Please be mindful that this order may have missing or inaccurate text.

NYSCEF DOC. NO. 65

PRESENT: Honorable Mary Ann Brigantti

DECISION / ORDER

The following papers numbered 1 to 6 read on the below motion noticed on September 15, 2016 and duly submitted on the Part IA15 Motion calendar of November 14, 2016:

Papers Submitted	Numbered
Defs.' Notice of Motion, Exhibits, Memo. of Law	1,2
Pl. Aff. In Opp., Exhibits	3,4
Defs' Aff. in Reply, Exhibits	5,6

Upon the foregoing papers, the defendant 2440 Webb Avenue, LLC ("Defendant") moves for summary judgment, dismissing the complaint of the plaintiff Humu Idrisu ("Plaintiff"), pursuant to CPLR 3212. Plaintiff opposes the motion.

I. Background

This matter arises out of an alleged slip and fall accident that occurred on February 17, 2015, at approximately 6:15 AM inside of the premises located at 2440 Webb Avenue in the Bronx, New York. Plaintiff, a tenant of the building, testified that it had been snowing continuously for a few days leading up to and including the date of this incident. That morning, she and her husband left their 4^th floor apartment and began descending down an interior staircase to a landing. Once she reached the landing, Plaintiff descending "about five steps" before she slipped and fell, and sustained injuries. When asked if she observed the cause of her fall, Plaintiff testified "I found that I was all wet and there was water all over, all over the floor, all over the place. My husband observed that there was water all over. Oh, my husband went to observe the area and found that there was water on the steps" (Pl. EBT at 22:17-25). Plaintiff further testified that she never previously saw water on the steps (id at 45), and didn't know if her husband had ever seen water on the steps before the accident (id). Plaintiff was also unaware of

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anyone ever complaining to the building about a water condition on the steps (id at 45, 46).

In support of its motion, Defendant submits the deposition transcript of Lulzim Mani, the building's superintendent since 2000. Mr. Mani's duties included sweeping and mopping the common areas of the whole building from the basement to the 5^th floor. He testified that the building's stairs were made of marble, four-to-five feet wide, with a hand rail on one side. Mr. Mani testified that he keeps a daily schedule whereby he checks the building's lobby, floor, stairs, and windows at 9:00AM, 1:00PM, and between 5:00 and 6:00PM each day. Mr. Mani explained that he maintained a written log of these checks where he would report any issue that he observed, including any wet condition (Mani EBT at p53 - 56). If he saw something serious, Mani would e-mail his supervisors and photograph the issue (id). Mr. Mani testified that whenever he mops, he would place a "wet floor" sign in the area. When it is snowing, he would check the building 3-4 times per day and mop any condition that he noticed. Mani also testified that he would place a "wet floor" sign at the entrance of the building on rainy or snowy days. Mani recalled that it was snowing in the two weeks leading up to this February 17, 2015 accident, but he never received a complaint regarding a wet condition on the staircase. Mr. Mani's maintenance log from that date does not contain a notation indicating the presence of a wet condition on the stairs.

Defendant now moves for summary judgment, arguing that there is no evidence that it created, or had actual or constructive notice of any allegedly hazardous condition. On the issue of constructive notice, Defendant asserts that there is no evidence of how long the condition existed. Furthermore, it is not disputed that it was snowing at the time of the incident, and Defendant had no obligation to provide a constant remedy to the problem of tracked-in water into the building lobby and staircase. Even if there was a defective condition on the premises, it did not exist for an appreciable amount of time, as Plaintiff herself did not readily observe it or take any measures to avoid the fall. Defendant also argues that it took reasonable precautionary measures in response to the inclement weather, and the testimony and maintenance log from Mr. Mani establish that the area was regularly inspected. Defendant finally asserts that Plaintiff's complaint must be dismissed because she failed to identify the cause of her fall. Plaintiff admitted that she did not see the water condition before she fell, and she was merely assuming that she fell in water because her pants were wet after she fell.

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In opposition to the motion, Plaintiff first argues that Defendant failed to meet its initial burden with respect to the absence of constructive notice. Superintendent Mani only referred to his general cleaning schedule, and did not testify that this schedule was actually adhered to on or near the date of this incident. Plaintiff further contends that the "maintenance log" was merely a janitorial schedule and no evidence of actual maintenance. Mr. Mani admitted that he did not know when the stairs were last mopped and stated that there was no log of mopping activity. Plaintiff also argues that the motion must be denied because Defendant wholly failed to address Plaintiff's claims that the subject staircase violated the Administrative Code of the City of New York, §§27-375(f) and (h). Plaintiff also avers that there are issues of fact regarding notice that preclude summary judgment. Plaintiff submits an affidavit from her husband, Rahmat Al-Hassan, who asserts that Plaintiff slipped on a trail of "dirty water footprints" and "puddles of water" originating from the building's entrance. Mr. Al-Hassan alleges that he saw the same trail of footprints and water for three weeks leading up to the accident, and the condition had grown "progressively worse" over those weeks. Furthermore, it had been snowing continuously for weeks leading up to this accident, and yet, as Mr. Mani acknowledged, there were no mats placed near the main entrance to the building. Plaintiff argues that the foregoing raises a factual issue as to whether Defendant took reasonable steps to maintain the premises in light of the storms, and whether there was a recurring dangerous condition on the premises that was routinely left unaddressed. Plaintiff asserts that Mr. Mani testified that he placed a "wet floor" sign inside of the premises on the date of this incident, thus raising an issue of fact as to notice of a hazardous or slippery condition.

Furthermore, Mr. Al-Hassan alleges in his affidavit that Mr. Mani was not actually working and maintaining the premises for about a month before this accident occurred. Mr. Al-Hassan allegedly learned that Mr. Mani had injured himself in January 2015, and as a resukt, was not working or performing his regular cleaning duties. Plaintiff submits a document from the Workers' Compensation Board indicating that Mr. Mani sustained an injury on January 4, 2015. Plaintiff alleges that this evidence raises an issue of fact as to whether the Defendant actually made regular inspections of the premises or performed cleaning in accordance with a set schedule. Plaintiff states that she is not alleging that the condition that caused her fall was the result of an ongoing storm. Rather, the condition was the result of several prior storms that

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resulted in various tenants and/or guests tracking in snow, that was routinely left unaddressed, for at least three weeks leading up to this accident. Finally, Plaintiff asserts that she identified the cause of her fall through her own testimony and that of her husband, Mr. Al-Hassan, who witnessed the accident.

In reply, Defendant argues that the Court must not consider the "self-serving" affidavit from Plaintiff's husband, as it was clearly tailored to avoid...