Raghu v. N.Y. City Hous. Auth.

• Decision Date: 08 April 2010
• Citation: 72 A.D.3d 480,897 N.Y.S.2d 436
• Parties: Sumintra RAGHU, Plaintiff-Respondent, v. The NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 436

72 A.D.3d 480

Sumintra RAGHU, Plaintiff-Respondent,

v.The NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellant.

Supreme Court, Appellate Division, First Department, New York.

April 8, 2010.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellant.

Zalman & Schnurman, New York (Norman E. Frowley of counsel), for respondent.

TOM, J.P., ANDRIAS, FRIEDMAN, NARDELLI, CATTERSON, JJ.

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered August 25, 2009, which, in an action for personal injuries, denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

On July 10, 2007, at about 8:30 A.M., plaintiff, a home healthcare worker, slipped and fell on a stairway in a building owned and operated by defendant, and sustained several fractures. At her General Municipal Law § 50-H hearing, plaintiff testified that she fell while ascending the stairs between the second and third floors. Before she fell, she noticed that there was some "[w]hite, powdery stuff" on the steps, "all over the place." She had put her right foot on the step, then fell forward onto her knees.

Lorenzo Brown, the building janitor, testified that on the day in question he had swept the entire staircase of the building and the building next door, each of which has five stories, between 8:00 A.M. and 8:30 A.M. When asked if he had a specific memory of doing these things on the day in question, he stated that he did, because he does the same routine every day. When asked what made him remember that particular day, he responded that it was because he did not change his routine, and had found an efficient way of getting the job done. He further testified that he did not remember ever seeing powder on the steps.

On or about November 18, 2008, plaintiff served an expert witness response stating that she intended to call Dr. William Marletta, a certified safety professional. The gist of the opinion he would offer was that the maintenance of the building departed from safe practice in that the accumulation of powder made the staircase more slippery. He noted further that the stair treads were not maintained in a clean and safe condition, that the stair risers varied in height from 7 1/2 to 8 inches high, rather than being uniform, and that the handrail was blocked and obstructed, with hand clearance of only one-eighth of an inch at step five, while regulations required clearance of one inch.

On or about April 24, 2009, defendant moved for summary judgment on the ground that plaintiff could not make out a prima facie case of negligence because there was no evidence that defendant either created or had actual or constructivenotice of the alleged defects which plaintiff claims to have caused her injuries. The motion court found that there was an issue as to constructive notice, arising from the janitor's credibility. The court found that Brown's recollection was equivocal, since he stated both that he had a specific memory of cleaning the stairs that day, and that he was basing his recollection on his routine.

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