Zanki v. Cahill

• Citation: 2 A.D.3d 197,768 N.Y.S.2d 471,2003 NY Slip Op 19391
• Decision Date: 11 December 2003
• Docket Number: 634.
• Parties: ENISA ZANKI et al., Appellants, v. GERALD K. CAHILL et al., Defendants, and CUSHMAN & WAKEFIELD, INC., Defendant and Third-Party Plaintiff-Respondent. CALIFORNIA JKC PROPERTIES, INC., Third-Party Defendant-Respondent, et al., Third-Party Defendants.
• Court: New York Supreme Court Appellate Division

2 A.D.3d 197

768 N.Y.S.2d 471

2003 NY Slip Op 19391

ENISA ZANKI et al., Appellants, v. GERALD K. CAHILL et al., Defendants, and CUSHMAN & WAKEFIELD, INC., Defendant and Third-Party Plaintiff-Respondent CALIFORNIA JKC PROPERTIES, INC., Third-Party Defendant-Respondent, et al., Third-Party Defendants.

634.

Appellate Division of the Supreme Court of the State of New York, First Department.

December 11, 2003.

Order, Supreme Court, New York County (Edward Lehner, J.), entered on or about January 10, 2002, which granted a motion and cross motion for summary judgment dismissing the complaint, all cross claims, and the third-party complaint, affirmed, without costs.

Plaintiff, seeking damages primarily for alleged psychological injuries, claims that she slipped while walking down a stairwell and fell down five or six steps to the landing. Plaintiff admits that she did not see what caused her to slip. She answered "no" when asked at her deposition whether she saw "anything on the stairs" either before or after her accident, and she further answered "no" when asked whether she had seen "any debris or liquids or anything in the stairwell before [she] began to descend the stairs." Upon landing at the bottom of the stairs, however, plaintiff claims to have noticed that the sleeve at her right elbow, which she had struck during her fall, was wet. Plaintiff also alleges that there was a recurrent dangerous condition of spilled food, drink and ice on the stairwell, in that workers were accustomed to using the stairwell to bring food and drinks from a cafeteria back to their offices. Presented with the foregoing evidence, the IAS court granted defendants summary judgment dismissing the complaint. We now affirm.

In this case, even if it is assumed that plaintiff has sufficiently alleged that defendants had notice of a recurring, and routinely unaddressed, dangerous condition of spillage on the stairwell, she has not alleged any facts from which it may be inferred that the alleged recurring condition even existed at the time she slipped and fell, much less that such condition proximately caused her mishap. That is to say, we are not presented with any evidence that spilled substances were present at the time of the incident anywhere on the stairwell. Critically, plaintiff did not testify that she saw spillage anywhere on the stairwell either immediately before or immediately after her accident, nor was any other substantial evidence of the existence of such a condition presented in opposition to the motion (cf. Sweeney v D & J Vending, 291 AD2d 443 [2002] [area of accident was seen being mopped after accident]; Welch v Riverbay Corp., 273 AD2d 66 [2000] [evidence was presented that "stairwell was icy or wet," which defendants did not directly dispute]; Ramos v New York City Hous. Auth., 249 AD2d 59 [1998] [defendant did not except to recurring condition charge]; O'Connor-Miele v Barhite & Holzinger, 234 AD2d 106, 107 [1996] [plaintiff testified to "accumulation of debris" on stairwell, "particularly of soap powder"]; Vitanza v Growth Realties, 91 AD2d 917 [1983] [in wrongful death action, evidence was presented that stairway "was seriously and pervasively defective"]; Kelsey v Port Auth., 52 AD2d 801, 801 [1976] [plaintiff "testified that she saw cigarette butts, paper cups and wetness" on stairway]; Gramm v State of New York, 28 AD2d 787, 787 [1967], affd 21 NY2d 1025 [1968] [claimant and other witnesses testified that steps "were worn, wet, dirty and littered"]).

The sole basis this plaintiff offers for the inference that a dangerous condition existed on the stairwell at the relevant time is her testimony that her sleeve (not any part of the stairwell itself) was wet at the right elbow at the end of her fall. Evidence of wetness on plaintiff's sleeve—wetness that could be ascribed to causes other than contact with spillage on the stairwell—simply does not, in isolation, suffice to support a reasonable inference that "the injury was sustained wholly or in part by a cause for which the defendant was responsible" (Bernstein v City of New York, 69 NY2d 1020, 1022 [1987], quoting Digelormo v Weil, 260 NY 192, 200 [1932]). Stated otherwise, plaintiff offers nothing more than "speculation or guesswork" (Bernstein, 69 NY2d at 1021) to support her contention that the alleged recurring condition existed on the stairwell at the time of her accident, and also caused her accident. Accordingly, defendant's motion for summary judgment was properly granted.

Concur — Andrias, Sullivan and Friedman, JJ.

Buckley, P.J. and Ellerin, J., dissent in a memorandum by Ellerin, J., as follows:

Plaintiff alleges that she was injured when she fell down a stairway from the third floor of the building in which she worked to the second-floor cafeteria run by her employer. She testified that she did not see what caused her to slip on the top step but that after she landed at the bottom of the stairs her sleeve was wet at the elbow. There was evidence that employees in the building carried food and drinks in the stairwell, that there were frequent spillages on the stairs and that defendant Cushman & Wakefield was aware of this.

Plaintiff's testimony as to what she observed after her fall, coupled with the testimony of defendant's employee that he knew that food and drink were dropped on the stairs, provided sufficient circumstantial evidence to raise an issue of fact as to whether her fall was caused by...