Perez v. Bronx Park South Associates

• Decision Date: 19 July 2001
• Citation: 728 N.Y.S.2d 33,285 A.D.2d 402
• Parties: CARLOS PEREZ, Appellant,<BR>v.<BR>BRONX PARK SOUTH ASSOCIATES, Respondent.
• Court: New York Supreme Court — Appellate Division

285 A.D.2d 402

728 N.Y.S.2d 33

CARLOS PEREZ, Appellant,

v.BRONX PARK SOUTH ASSOCIATES, Respondent.

Decided July 19, 2001.

Concur — Nardelli, J. P., Williams, Tom and Lerner, JJ.

This is a personal injury action in which plaintiff Carlos Perez alleges that he slipped and fell on the front steps of his apartment building, which is designated as 940 Bronx Park South, Bronx, New York (the building). The building is owned and maintained by defendant Bronx Park South Associates (Bronx Park).

Plaintiff, at a deposition conducted on February 3, 1999, testified that he worked close to his residence and returned often during the day, and that when he left for work at 5:00 A.M., he did not notice any debris or oil on the steps of the building. Plaintiff maintained that he returned to his apartment for lunch at approximately 12:00 P.M., at which time there was no debris on the steps. Plaintiff then testified that he left to return to work at approximately 1:30 P.M. and slipped and fell on supermarket fliers that were probably placed on the steps while he was inside his apartment eating lunch. Initially, plaintiff averred that he fell on the fliers and "that was it," but, after some prodding from his attorney, who queried "[d]idn't you tell me you slipped on garbage and oil on the steps?" plaintiff agreed that there was oil on the first step, but that the oil was not there earlier in the day and appeared at some point between the time he returned for lunch at noon and when he fell, 1½ hours later.

It is well established that a landowner is under a duty to maintain its property in a reasonably safe condition under the existing circumstances, which include the likelihood of injury to third parties, the potential that any such injury would be of a serious nature, and the burden of avoiding the risk (Basso v Miller, 40 NY2d 233, 241; Pappalardo v New York Health & Racquet Club, 279 AD2d 134). However, in order to recover damages for an alleged breach of this duty, a party must demonstrate that the landlord created, or had actual or constructive notice of, the hazardous condition which precipitated the injury (Leo v Mt. St. Michael Academy, 272 AD2d 145; O'Connor-Miele v Barhite & Holzinger, 234 AD2d 106, 106-107; Piacquadio v Recine Realty Corp., 84 NY2d 967, 969). In order to constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to allow the owner to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836, 837; O'Connor-Miele v Barhite & Holzinger, supra, at 106; O'Neill v Maiara, 267 AD2d 440).

In light of the foregoing, plaintiff's own deposition testimony makes it clear that none of the criteria necessary to sustain a cause of action against the landowner have been met. Plaintiff's submission of a one-page affidavit from his neighbor, an alleged eyewitness to the accident, which consists of nothing more than two relevant sentences of conclusory allegations tailored to overcome plaintiff's testimony, is insufficient to warrant the denial of defendant's motion. As we held in Phillips v Bronx Lebanon Hosp. (268 AD2d 318, 320), "[w]hile issues of fact and credibility may not ordinarily be determined on a motion for summary judgment, where, as here, the self-serving affidavits submitted by plaintiff in opposition clearly contradict plaintiff's own deposition testimony and can only be considered to have been tailored to avoid the consequences of her earlier testimony, they are insufficient to raise a triable issue of fact to defeat defendant's motion for summary judgment." (See also, Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441 ["The court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned." (emphasis added)].)

Rubin, J., dissents in a Memorandum as follows:

The function of a court on a motion for summary judgment is issue finding not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; Wiener v Ga-Ro Die Cutting, 104 AD2d 331, 333, affd 65 NY2d 732; Creighton v Milbauer, 191 AD2d 162, 166). The evidence in this case raises triable issues of fact not amenable to summary disposition as a matter of law.

Though the basis of defendant's CPLR 3212 motion is not stated in either the notice of motion or the accompanying affidavit of counsel, it is clearly predicated upon CPLR 3211 (a) (7). Dismissal of the complaint is sought on the ground that no action is stated in that there is allegedly no evidence that defendant had notice, either actual or constructive, of the claimed hazardous condition. The Court of Appeals has unequivocally stated that whether the order under review decides a pre-answer motion to dismiss or a motion for summary judgment, the Court "must view the facts in a light most favorable to the plaintiff" (Crosland v New York City Tr. Auth., 68 NY2d 165, 168, n 2), "consistent with the rule that in opposing motions to dismiss for failure to state a cause of action and motions for summary judgment the plaintiff's submissions must be accepted as true" (Ingle v Glamore Motor Sales, 73 NY2d 183, 194).

The discrepancy between plaintiff's deposition testimony that he observed no debris or oil on the steps an hour and one half prior to the accident and the affidavit of his neighbor that she observed "papers, garbage and grease" on the steps the previous day that had not been removed at the time of the accident presents, at most, an issue of credibility to be resolved at trial. "The assessment of the value of a witness[`s] testimony constitutes an issue for resolution by the trier of fact, and any apparent discrepancy between the testimony and the evidence of record goes only to the weight and not the admissibility of the testimony" (Dollas v W. R. Grace & Co.,...