Vasquez v. Nealco Towers LLC

• Decision Date: 12 April 2018
• Docket Number: Index 150909/12,6260
• Citation: 74 N.Y.S.3d 533,160 A.D.3d 496
• Parties: Marisol VASQUEZ, Plaintiff–Appellant, v. NEALCO TOWERS LLC, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 496

74 N.Y.S.3d 533

Marisol VASQUEZ, Plaintiff–Appellant,

v.NEALCO TOWERS LLC, Defendant–Respondent.

6260

Index 150909/12

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

ENTERED: APRIL 12, 2018

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

Pillinger Miller Torallo LLP, Elmsford (Daniel O. Dietchweiler of counsel), for respondent.

Sweeny, J.P., Richter, Andrias, Webber, Moulton, JJ.

Order, Supreme Court, New York County (George J. Silver, J.), entered August 10, 2016, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established entitlement to judgment as a matter of law by submitting evidence showing that it neither created the alleged hazardous condition of the step on which plaintiff fell nor had actual or constructive notice of it. The deposition testimony of the building superintendent and the property manager's affidavit established that there were no prior complaints or incidents involving the same step (see Johnson v. Wythe Place, LLC, 134 A.D.3d 569, 22 N.Y.S.3d 42 [1st Dept. 2015] ), and plaintiff's own testimony, that she did not see the defect as she walked up the stairs approximately 20 minutes prior to the incident, indicates that the alleged defective condition was not visible and apparent so as to constitute constructive notice ( id. ).

In opposition, plaintiff failed to raise a triable issue of fact. The evidence failed to show a specific recurring condition that was routinely left unremedied by defendant, as a opposed to a general awareness of such a condition, for which defendant would not be liable (see Rodriguez v. New York City Hous. Auth., 102 A.D.3d 407, 408, 959 N.Y.S.2d 127 [1st Dept. 2013] ). Plaintiff's argument that inadequate lighting in the staircase was a proximate cause of her fall is unavailing, since she testified that she slipped because of the defect on the stairs, not because of inadequate lighting (see Sarmiento v. C & E Assoc., 40 A.D.3d 524, 526, 837 N.Y.S.2d 57 [1st Dept. 2007] ).