Rodriguez v. 705-7 East 179th St. Hous. Dev. Fund Corp.

• Decision Date: 14 December 2010
• Citation: 913 N.Y.S.2d 189,79 A.D.3d 518
• Parties: Isamar RODRIGUEZ, Plaintiff-Appellant, v. 705-7 EAST 179TH STREET HOUSING DEVELOPMENT FUND CORPORATION, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

913 N.Y.S.2d 189

79 A.D.3d 518

Isamar RODRIGUEZ, Plaintiff-Appellant,

v.705-7 EAST 179TH STREET HOUSING DEVELOPMENT FUND CORPORATION, Defendant-Respondent.

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

Dec. 14, 2010.

Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant.

Lester Schwab Katz & Dwyer, LLP, New York (Steven B. Prystowsky of counsel), for respondent.

ANDRIAS, J.P., NARDELLI, MOSKOWITZ, DeGRASSE, ROMÁN, JJ.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about September 16, 2009, which, in an action for personal injuries sustained in a fall on defendant cooperative's premises, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The exterior of the building entrance where the accident occurred had two stairs, a landing, then two more stairs. In her affidavit in opposition to the summary judgment motion, plaintiff asserts that on January 27, 2005 at 8:30 A.M., she slipped and was injured "due to the wet and icy conditions of the exterior stairs and rug of said premises, as well as the movement, shifting and crumpling of the unsecured rug on said exterior stairs."

At her deposition, plaintiff testified that on the morning of the accident it was cold, below freezing, with the sun shining, but not bright. It was warmer the day before. The rug covered most of the steps on the bottom stairs and it was "loose" and "frozen," with a clear and wet looking "icy patch," which could be described as "black ice," all over the rug. Plaintiff could not tell how thick the icy patch, which she did not see until after she fell, was. Nor did plaintiff see ice on the top stairs or landing. While plaintiff did see ice and snow in the courtyard, through which defendant had shoveled a small path from asnow storm that occurred four or five days earlier, she did not see ice on the path to the stairs itself.

When asked how the accident occurred, plaintiff first testified that she slipped on the icy patch. When asked if she "slipped on the icy patch, tripped over the rug, or something else," plaintiff replied: "[i]ce on it." When asked if the rug moved, plaintiff replied that she did not remember because everything happened so fast. Although plaintiff did testify that after her fall she looked back and saw the rug was "kind of crumbled up" and that it was crumbled before her fall, when asked if thecrumbling or the ice or a combination of the two caused her fall, she answered:

"A. Yes.

"Q. It was the ice?

"A. Yes."

In her bill of particulars, plaintiff claimed that defendant had constructive notice of the icy condition because it snowed approximately one week before the accident.

The Board's former president, Raymond Agosto, testified at his deposition that the building had a part-time porter who worked from 5:00 P.M. to 9:00 P.M. every day, except Saturday and Monday. The porter's duties included snow removal and he was instructed to make a two-foot path while a snow storm was in progress and to widen it after the storm stopped. The porter would throw a layer of salt after removing snow, or the day before, if he expected snow. If the porter was unavailable, Board members or volunteers would help with snow removal. It was the Board's decision to place a mat on the landing between the two exterior stairways. However, the stairs themselves were never covered by the mat. About 45 minutes after plaintiff's accident, Agosto saw the mat pushed to one side of the landing, folded over.

"A defendant who moves for summary judgment in a slip-and-fall action has the initial burden of making a prima facie demonstration that it neither created the hazardous condition, nor had actual or constructive notice of its existence. Once a defendant establishes prima facie entitlement to such relief as a matter of law, the burden shifts to plaintiff to raise a triable issue of fact as to the creation of the defect or notice thereof" ( Smith v. Costco Wholesale Corp., 50 A.D.3d 499, 500, 856 N.Y.S.2d 573 [2008] [internal citations omitted] ).

On the record before us, defendant sustained its prima facie burden through: (i) plaintiff's deposition testimony that, at around 5:45 or 6:00 P.M. on the night before the accident, shehad used the stairs and did not see any ice; that on the morning of the accident, she did not see the icy patch, which looked like black ice, until after she fell; that she could not tell how thick the ice was; and that while she did see the rug on the steps two or three other times in the seven years she had lived in the building, and complained about inadequate snow removal to her mother and other tenants, she never complained to defendant about either of those conditions; and (ii) Agosto's deposition testimony that at around 6:30 P.M. on the night before the accident, he observed that the mat was in its proper place on the landing between the two exterior stairways, which were free of ice, and that he was not aware of any prior incidents...