Ortiz v. 424 Sheva Realty Assocs. LLC

• Decision Date: 02 July 2014
• Docket Number: INDEX NUMBER: 301103/2012
• Court: New York Supreme Court
• Parties: LYDIA ORTIZ, Plaintiff, v. 424 SHEVA REALTY ASSOCIATES LLC and LANGSAM PROPERTY SERVICES CORP., Defendants.

2014 NY Slip Op 32089(U)

LYDIA ORTIZ, Plaintiff,
v.
424 SHEVA REALTY ASSOCIATES LLC
and LANGSAM PROPERTY SERVICES CORP., Defendants.

INDEX NUMBER: 301103/2012

NEW YORK SUPREME COURT----------COUNTY OF BRONX PART IA-5

FILED: July 31, 2014
July 2, 2014

Present: HON. ALISON Y. TUITT Justice

The following papers numbered 1 to 3.

Read on this Defendants' Motion for Summary Judgment

On Calendar of 3/10/14

Notice of Motion-Exhibits and Affirmation	1
Affirmation in Opposition	2
Reply Affirmation	3

Upon the foregoing papers, defendants 424 Sheva Realty Associates LLC (hereinafter "424 Sheva Realty") and Langsam Property Services Corp.'s (hereinafter "Langsam") motion for summary judgment is denied for the reasons set forth herein.

The within action involves plaintiff's claim that she was injured on January 14, 2012 at approximately 6:15 to 6:30 p.m. when she slipped and fell on debris in an interior staircase at 424 Grand Concourse, Bronx, New York. Plaintiff resided at the aforementioned premises which was owned by defendant 424 Sheva Realty and managed by defendant Langsam. In support of its motion for summary judgment, defendants argue that they did not have any actual or constructive notice of the alleged defective condition and their routine maintenance and inspection of the subject accident site satisfied the duty of care as a matter of law.

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Defendants claim that they never observed or received any complaints or notice regarding the specific defect alleged by plaintiff at any time prior to her accident. Defendants further claim that they never heard of anyone slipping or tripping and falling on garbage in the subject stairwell. Defendants contend that they routinely walked through the premises, inspecting hallways and stairwells, including the subject stairwell, beginning at 8:00 a.m. and several times throughout the day, ending no earlier than 4:00 p.m.

Plaintiff testified at her deposition that her apartment was on the fourth floor and that the building is a walk-up with no elevator. The entrance to the building is on the first floor and plaintiff's apartment is three flights above the first floor. The stairwell between the first and fourth floors have platforms half way between each floor. From the first floor, there is a stairwell which goes down to the courtyard where the garbage cans are kept. On the date of the accident, plaintiff left her apartment and went to throw away a small bag of garbage in the courtyard. Plaintiff left her apartment and walked down to the first floor. The accident occurred on the stairwell between the first floor and the landing leading to the courtyard and garbage cans. Plaintiff testified that she slipped on the fourth step from the top of the stairwell, or the second step from the landing. Immediately prior to her accident, plaintiff was holding the handrail with her right hand and holding the small bag of garbage in her left hand. Plaintiff slipped with her left foot. Plaintiff testified that she did not have trouble seeing where she was going as she was walking down the stairs and she could see the subject stairwell as she stood on the first floor. She did not notice anything wrong with the stairs as she began walking down the stairs from the first floor. Plaintiff testified that after she fell, she first noticed the box on the steps that caused her to fall. She did not see the box on the steps before she stepped on to it. Plaintiff described the box as the size of a cracker jacks box. Plaintiff did not know how long the box was on the subject stairs, who put the box on the stairs or who owned it. Plaintiff was not aware of anyone who had complained about the subject box prior to her accident. After falling, plaintiff yelled for someone to help and Bobby, a homeless man from the neighborhood, came within two to three minutes. Plaintiff asked Bobby to call her neighbor Andrea and her daughter Janet. Andrea's daughter, Evelyn Berrios, went to see plaintiff and called the ambulance.

Prior to her accident, plaintiff had never slipped on the subject stairwell and did not know of anyone else slipping on garbage in the stairwell prior to her accident. Plaintiff testified that she had complained to the superintendent "many times" about the debris on the stairs. "I did complain about the garbage, not only there, but in the whole building. That area was dangerous because anything could happen to anybody and the

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area has many children." She further testified that "[e]very time I would see garbage I would tell him or the people that are in the building that they had to clean up" and that she last complained about the garbage on the stairs two to three months before her accident.

Gerald Constanza appeared at a deposition on behalf of defendant Langsam. Mr. Constanza testified that he managed thirty buildings for Langsam including the subject premises. As a managing agent, he was responsible for visiting each building, checking boiler, the cleanliness of the building and seeing if any issues had been reported. In the year before plaintiff's accident, he visited the premises for a walk-through once every two to three weeks. During his walk-throughs, he and the superintendent checked to make sure the building was kept clean. Mr. Constanza testified that his walk-through visits were unannounced and the super did not know when he would be there. He further testified that the garbage cans are located in the courtyard outside of a side door and he checked the stairwell leading to the side door and courtyard as part of his walkthrough. The superintendent, Angel Gonzalez, resided in the building immediately next door to the subject premises which was separated by the common courtyard where the garbage cans were located. Mr. Constanza testified that he was the super's supervisor. Mr. Gonzalez's duties included checking the boiler and cleaning the common areas including the hallways and stairwells. His schedule each day included sweeping the hallways and stairwells and the exterior of the building to the curb line at 8:00 a.m. Mr. Gonzalez was responsible for going up and down the stairs a few times a day to ensure that nothing that would cause a trip or slip and fall was on the steps. The walk-throughs by the super began in the morning and then continued a few hours later and then in the afternoon. Mr. Constanza testified that all complaints from tenants go through the super to him or to him directly if the tenant called Langsam's office. Mr. Constanza further testified that he never received any complaints regarding garbage in the common areas, including the subject stairwell in the year before plaintiff's accident. He never heard of any slip or trip and fall accidents regarding garbage in the common areas, including staircases, inside or outside of the subject premises, in the year before her accident. In the year before her accident, Mr. Constanza never saw garbage at or about the staircase near the garbage cans and never saw garbage on the staircase leading to the garbage cans. He never saw anyone leave garbage at the top of the subject staircase.

Evelyn Berrios, a tenant in the subject premises, appeared for a non-party deposition. Ms. Berrios recalled the day of plaintiff's accident and was in the shower when Robert "Bobby" Cortez knocked on

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her door and told her that the plaintiff had an accident. Ms. Berrios went down the stairs and saw plaintiff on...