Rivera v. Waterview Towers, Inc.

181 A.D.3d 844

121 N.Y.S.3d 140

Wilfred RIVERA, Respondent,

v.WATERVIEW TOWERS, INC., Defendant Third-Party plaintiff-Appellant;

Security & Industries, Inc., etc., Third-Party Defendant.

2017–08448

Index No. 17297/13

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

Argued - November 26, 2019

March 18, 2020

Margaret G. Klein (Mauro Lilling Naparty LLP, Woodbury, N.Y. [Matthew W. Naparty and Kathryn Beer], of counsel), for defendant third-party plaintiff-appellant.

Scott L. Sherman & Associates, P.C., New York, NY, for respondent.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant third-party plaintiff appeals from an order of the Supreme Court, Kings County (Teresa Ciccotto, J.), dated July 11, 2017. The order denied the defendant third-party plaintiff's motion for summary judgment dismissing the complaint and a third-party counterclaim.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured when he slipped and fell in the stairwell of a residential building owned by the defendant third-party plaintiff, Waterview Towers, Inc. (hereinafter the defendant), where he worked as a security guard, as a result of a wet condition on the stairwell between the sixteenth floor and the roof. The plaintiff commenced this action to recover damages for personal injuries, alleging, inter alia, that the defendant had notice of the allegedly dangerous condition and that the defendant failed to remedy a recurrent condition of liquid accumulating in the stairwell due to a leaky ceiling directly above the fall site. The defendant moved for summary judgment dismissing the complaint and a third-party counterclaim, arguing that it neither created nor had notice of the allegedly dangerous condition, and that the plaintiff was unable to identify the cause of his fall without resorting to speculation. The Supreme Court denied the motion. The defendant appeals.

A defendant moving for summary judgment in a slip-and-fall case has the initial burden of establishing that it neither created the hazardous condition that allegedly caused the fall, nor had actual or constructive notice of that condition for a sufficient length of time to discover and remedy it (see Steele v. Samaritan Found., Inc., 176 A.D.3d 998, 110 N.Y.S.3d 448 ; Burke v. Umbaca, 163 A.D.3d 618, 618, 76 N.Y.S.3d 835 ; Ash v. City of New York, 109 A.D.3d 854, 855, 972 N.Y.S.2d 594 ). "Where the defendant has actual knowledge of a recurrent dangerous condition, [it] may be charged with constructive notice of each specific recurrence of it" ( Mauge v. Barrow St. Ale House, 70 A.D.3d 1016, 1016–1017, 895 N.Y.S.2d 499 ). "A question of fact regarding a recurrent dangerous condition can be established by offering evidence that an ongoing and recurring dangerous condition existed in the area of the accident which was routinely left unaddressed" ( id. at 1017, 895 N.Y.S.2d 499 ).

Moreover, "a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation" ( Ash v. City of New York, 109 A.D.3d at 855, 972 N.Y.S.2d 594 ; see C.M. v. Gasiorowski, 173 A.D.3d 1156, 1157, 102 N.Y.S.3d 681 ). However, even in the absence of direct evidence of causation, that the existence of a defective or dangerous condition was the proximate cause of an accident may be logically inferred based on facts and circumstantial evidence (see Pajovic v. 94–06 34th Rd. Realty Co., LLC, 152 A.D.3d 781, 781–782, 59 N.Y.S.3d 138 ).

Here, the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law. The defendant's submissions, which included a transcript of the plaintiff's deposition testimony, failed to eliminate all triable issues of fact as to whether the defendant had...