Manning v. City of N.Y.
| Decision Date | 08 July 2013 |
| Docket Number | Index No. 300573/11 |
| Citation | 2013 NY Slip Op 33715 (U) |
| Parties | Roger Manning Plaintiff v. The City of New York and The New York Department of Corrections Defendants |
| Court | New York Supreme Court |
Howard H. Sherman J.S.C.
Plaintiff seeks recovery for injuries allegedly sustained on July 22, 2010 when he slipped and fell while descending an interior stairway of the Otis Bantum Correctional Facility located within the Riker's Island Correctional Facility, East Elmuhurst, New York. Between the period May 24, 201 0 and August 16, 2010, plaintiff was an inmate in the facility.
This action was commenced in January 2011, after the Filing of a Notice of Claim on September 20, 2010, and issue was joined with the service of defendants' answer in February 2011.
Plaintiff was examined pursuant to General Municipal Law § 50-h on December 9, 2010.
In pertinent part, the municipal defendants were notified that the underlying claim arose when the claimant was caused to slip on the stairway "on a slippery solution on said defective stairway", and that his injuries were "caused due to the dangerous, slippery, defective, poorly illuminated, improperly constructed, improperly designed, broken, improperly maintained and hazardous condition of the stairway."
Plaintiff testified that the stairwell on which he fell was the one "that he always used to go from one part to another" in the facility [HRG: 14], and on the day of the accident he had last used the stairs at lunchtime to get to and to return from the mess hall[ Id. 21]. He did not observe anything on the stairs at that time, nor when beginning to descend the stairs with the other inmates for dinner [Id. 22-23].
Plaintiff testified as follows concerning what he believed caused him to fall down the stairs.
Q. Was it your left foot or your right foot or both feet ?
Q. What is it you believe caused you to slip ?
A. I believe it was liquid on the floor that caused me to slip.
Q. Prior to your slipping did you see any liquid ?
A. I wasn't paying attention to that substance that was on the floor.
Q. When you are now at the bottom the staircase on the landing, did you go back up the flight of stairs to see if there was any liquid or substance ?
A. No. I seem to recall - - I didn't, no.
Q. Did someone tell you that there was a substance on it ?
A. Yes. I remember the officer, I believe a nurse and couple of the — I don't' recall how many inmates were there at the time, but I remember they were talking about something that was on the floor.
Id. 25:24-27:10
Concerning prior observations of "an accumulation of substances, liquids or debris" on the staircase, plaintiff testified that he had seen "substances and debris on this floor" [Id. 19:19-24], however, he was not "one hundred percent sure" whether in that particular area the observed condition was one that "would remain for a long period of time or would get cleaned up[ ]." [Id. 19:19- 20: 5] He had observed "stuff" on thestaircase "several times", "blankets on there soaking up water "; "water", as well as "what may appear as trails of another viable liquid maybe milk." [Id. 20:5-11].
In addition, plaintiff testified as follows as to prior observations of leaks at the particular location.
A. Like puddles.
Q. Is that some form of substance, a liquid ?
A. It could have been some form of a substance. I never experienced, I never walked in the corridor and have something fall on my head and said there is a leak up there.
Q. You never saw where the leak would come from ?
A. No. ....
It is alleged that defendants were negligent in inter alia, permitting the stairway to become and to remain in a "dangerous, hazardous, defective, slippery, poorly lit and/or illuminated and traplike condition and in failing to warn of same [¶ 19]. Both actual and constructive notice are alleged [Id. ¶ 25].
Plaintiff testified on November 29,2011, and on January 9, 2012, Katrina Cambridge Captain of the New York City Department of Corrections testified.
The Note of Issue was filed on March 1, 2012.
Plaintiff testified that he had observed "puddles of water" located "all over" the stairwell "[w]hen it rains ", and "all over the facility ", described as "[d]ifferent areas .. . water formed on the floor, you might see rags or blankets trying to soak up water and such." [Id. 42: 5-24]. He could not recall if it were raining on the date of the accident [Id. 42:25-43:1].
Defendants now move for an order awarding summary judgment dismissing the complaint on the grounds that the record is devoid of any evidence to raise a triable issue that before the accident, defendants caused or possessed actual or constructive notice of any dangerous condition on the steps or the staircase.
In opposition, plaintiff argues that defendants failed to satisfy their initial burden on the motion as there is an unresolved materia issue of fact "with regard to notice of the recurrent water condition which caused plaintiff to slip and fall[ ]" [Affirmation in Opposition ¶ 16]. Plaintiff submits the statement of a fellow inmate who witnessed theaccident who witnessed the accident, however the statement is unsworn, and as such, is inadmissible.1
In reply, defendants argues that plaintiff has not put forth any legal or factual arguments to rebut the municipal defendants' prima facie showing of entitlement to summary judgment dismissal of those claims alleged in negligent design, improper construction and/ or lighting, and as such, defendants are entitled to summary dismissal of such claims.
With respect to the remainder of the plaintiff's claim predicated on a transitory defective condition, defendants argue that there is no evidence in this record of any complaints of water or substances on the subject staircase to support a finding of a triable issue of fact that defendants possessed pre-accident knowledge of liquid on the steps of the staircase. Nor, in light of the testimony of plaintiff concerning his lack of observation of any liquid on the steps earlier in the day, and immediately prior to the incident, as well as that of Captain Cambridge regarding the daily "sanitation detail" schedule, is there here any unresolved issue of fact that any wetness on the steps was visible and apparent and existed for a sufficient length of time prior to the accident to permit defendants to discover and remedy it.
Finally, concerning any issue of fact that defendants had constructive notice of the causative transitory condition devolving from their knowledge of a recurrent condition routinely left unaddressed, defendants note that, to date, this allegation has never been asserted by notice of claim, complaint, nor by the verified bill of particulars, and, as such should not be considered as a matter of law. Substantively, it is maintained that this theory by which the requisite notice would be imputed to defendants must here fail as there is no evidence that on the day of the accident, the allegedly "recurrent" condition existed and caused plaintiff to slip and fall. Moreover, to the extent that plaintiff alleges a recurrent condition triggered by a rainfall, defendants argue that there is no evidence in the record that it rained on June 22, 2010, and submit copies of NOAA records indicating that it did not, nor was there any rainfall for the two days preceding the incident.
It is by now well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of a material issues of fact. Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E. 2d 718, 427 N.Y.S. 2d 595 [1980]). Upon consideration of the motion, "the evidence must be construed in a light most favorable to the party opposing the motion (Weiss v Garfield, 21 AD2d 156)." Matter of Benincasa v. Garrubbo, 141 A.D.2d 636, 637-638 ; 529 N.Y.S.2d 797 [2d Dept. 1988]; see also,Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96,850 NE2d 653, 817 NYS2d 606 [2006]).
This "drastic remedy should not be granted where there is any doubt as to the existence of such issues (Braun v. Carey, 280 App.Div. 1019) or where the issue is 'arguable' (Barrett v. Jacobs, 255 N.Y. 520, 522), as such, 'issue-finding, rather than issue-determination, is the key to the procedure' (Esteve v. Avad, 271 App. Div. 725, 727)." (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404, [1957]).
Failure to demonstrate the absence of any material issues of fact requires the denial of the motion, regardless of the sufficiency of the papers in opposition (see, Alvarez v. Prospect Hospital, 68 NY2d 320,324, 501 N.E.2d 572 [1986]; see also, Smalls v. AJI Industries, Inc., 10 NY3d 733, 735, 883 N.E.2d 350 [2008]; Vega v. RestaniConstr.Corp., 18 N.Y.3d 499; 965 N.E.2d 240 [2012]).
Moreover, "[a]s a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in opponent's proof, but must affirmatively demonstrate the merit of its claim or defense" (Larkin Trucking Co. V. Lisbon Tire Mart, 185 AD2d 614, 615 [4th Dept. 1992])" Pace v. International Bus. Mach., 248 AD2d 690,691, 670 N.Y.S.2d 543 [2d Dept 1998]; see also, Peskin v. New York City Transit Auth., 304 AD2d 634, 757 N.Y.S. 2d 594 [2d Dept. 2003]; Torres v. Indus. Container, 305 A.D.2d 136, 760 N.Y.S.2d 128 [1st Dept. 2003]; Bryan v 250...
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