Upon the foregoing papers, the motion of the defendant 1355 Morris Ave., LLC, (hereinafter, “1355 Morris”) for summary judgment pursuant to CPLR 3212 dismissing the complaint is decided as follows: Plaintiff Elianny Lopez seeks damages for personal injuries allegedly sustained on December 22, 2016, when she slipped and fell on interior stairs within her apartment building and suffered injuries. Specifically, at her deposition, plaintiff described the stairs as wet and slippery because the superintendent had been mopping the stairs before she slipped and fell. Defendant 1355 Morris argues that it cannot be held liable for the plaintiff’s fall because her accident was not proximately caused by its failure to warn. In support of its arguments, 1355 Morris relies primarily on the testimony of the plaintiff. She testified that she knew that the superintendent was cleaning the building and that the stairs were supposedly wet when she left her apartment and before she started descending the stairs that morning. Plaintiff further stated that she was running late that morning, and while descending the steps she was focused on looking at her cell phone. Although defendant disputes the facts as alleged by plaintiff, even accepting plaintiff’s version of the circumstances, defendant maintains that it is still not liable to plaintiff for her accident. Defendant also relies on a surveillance video footage that depicts the accident which forms the basis of the instant litigation. Defendant maintains that in contrast to plaintiff’s testimony, the video footage shows that plaintiff did not fall as a result to a wet spot, but that she fell, due to a misstep attributable to her inattentiveness. Therefore, defendant maintains that it is clear from plaintiff’s own testimony, and the video footage that the only reason plaintiff fell was because she was focused on her phone and not paying attention to where she was going. As such, defendant contends that it is not liable to plaintiff for such an accident. In opposition, plaintiff relies on her deposition testimony where she consistently stated that prior to her fall she witnessed the building superintendent mopping the floor and staircase, and that she fell shortly thereafter as a result of the stairs being wet. Plaintiff also relies on the deposition testimony of Edgar Torres, the building superintendent at the time of the accident. Mr. Torres while admitting that it was his sole responsibility for all in house maintenance including cleaning and mopping of the common areas, testified that on the day in question he did not mop the floor. The court’s function on this motion for summary judgment is issue finding rather than issue determination. (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). “[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 574, 508 N.Y.S.2d 923, 925-926 [1986] [citations omitted].) Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1978].) The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party. (Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824 [2014].) A landowner is under a duty to maintain its property in a reasonably safe condition under the existing circumstances, including 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. In order to recover damages, a party must establish that the owner created or had actual or constructive notice of the hazardous condition which precipitated the injury. (Piacquadio v. Recine Realty Corp., 84 NY2d 967, 969, 646 NE2d 795, 622 NYS2d 493 [1994].) “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 permit defendant’s employees to discover and remedy it.” (Gordon v. American Museum of Natural History, 67 NY2d 836, 837, 492 N.E.2d 774, 501 N.Y.S.2d 646 [1986]). “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” (Smith v. Costco Wholesale Corp., 50 AD3d 499, 500, 856 N.Y.S.2d 573 [1st Dept 2008]). “To meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall.” (Mei Xiao Guo v. Quong Big Realty Corp., 81 AD3d 610, 611, 916 N.Y.S.2d 155 [2d Dept. 2011] [citations omitted]; Quintana v. TCR, Tennis Club of Riverdale, Inc., 118 AD3d 455, 987 N.Y.S.2d 68 [1st Dept. 2014] [defendant failed to establish a lack of constructive notice of the wet condition on steps where the moving papers contained no indication of when the area was last inspected prior to the accident]; Qevani v. 1957 Bronxdale Corp., 232 AD2d 284, 649 NYS2d 11 [1st Dept. 1996] [issue of fact as to whether existence of condition on steps for 90 minutes constituted constructive notice].) Defendant’s burden to establish a lack of constructive notice may be met by testimony of regular maintenance. (Raposo v. New York City Hous. Auth., 94 AD3d 533, 942 N.Y.S.2d 337 [1st Dept. 2012] [burden shifted when defendant's caretaker testified that he followed the janitorial schedule pursuant to which he would have inspected all the staircases in the morning and afternoon, mopped the stairs any time he encountered a wet condition, replaced any light bulbs that were not functioning, and reported the condition to his supervisor]; Raghu v. New York City Hous. Auth., 72 AD3d 480, 897 N.Y.S.2d 436 [1st Dept. 2010] [janitor's testimony that his regular routine included cleaning the stairwell between 8:00 A.M. and 8:30 A.M., and that he did not observe any powder, was sufficient to shift the burden to plaintiff of demonstrating the existence of questions of fact].) However, vague testimony as to general cleaning practices lacking specific details is generally not sufficient to establish an entitlement to judgment in the movant’s favor. (Birnbaum v. New York Racing Ass’n, Inc., 57 AD3d 598, 598-99, 869 N.Y.S.2d 222 [2d Dept. 2008] [defendant failed to meet its burden on the issue of lack of constructive notice where it offered evidence of "general daily cleaning practices," but failed to offer "evidence as to when the area in question was last cleaned and inspected relative to the time when the plaintiff fell," including any "evidence regarding any particularized or specific inspection or stair-cleaning procedure in the area of the plaintiff's fall on the date of the accident."]) Absent testimony concerning a recent inspection or recent observations of a floor by defendant’s or its employees, a defendant may establish a prima facie case based on the testimony of the plaintiff, and other observers, that no dangerous condition was visible or observed prior to the accident. In this action, the defendant’s submissions, consisting principally of the deposition testimony of the injured plaintiff, is not sufficient to establish, prima facie, that the defendant did not create the alleged dangerous condition and did not have notice, actual or constructive, of its existence. Accordingly, it is hereby, ORDERED that Motion Sequence No. 3 for summary judgment is denied. This is the Decision and Order of the Court. Dated: August 10, 2020
