| Viera v Riverbay Corp. |
| 2007 NY Slip Op 08116 [44 AD3d 577] |
| October 30, 2007 |
| Appellate Division, First Department |
| Vanessa Viera, Respondent, v Riverbay Corporation,Appellant. |
—[*1] Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac of counsel), forrespondent.
Order, Supreme Court, Bronx County (Edgar Walker, J.), entered June 8, 2006, denyingdefendant's motion for summary judgment, unanimously reversed, on the law, without costs, themotion granted and the complaint dismissed. The Clerk is directed to enter judgmentaccordingly.
On August 14, 2003, at approximately 4:10 p.m., a massive power outage occurred leavingtens of millions of people in North America without electricity. At 5:30 p.m. on that date,plaintiff, accompanied by her husband and daughter, went to an apartment building in Co-op Cityowned by defendant to check on the welfare of plaintiff's mother, who lived in an apartment onthe 15th floor of the building. Since the elevator was inoperable due to the blackout, plaintiff, herhusband and her daughter walked up a stairway to the apartment. While each landing in thestairway had a light, those lights also were inoperable. Plaintiff's husband, however, had aflashlight that he used to illuminate the stairway. As they ascended the stairs, both plaintiff andher husband observed at least one person carrying bags of ice up the stairs.
At approximately 7:00 p.m., plaintiff, her husband, her daughter, her mother and a friend ofplaintiff's mother left the apartment and descended the stairs. Plaintiff's husband, carrying theflashlight, led the group down the stairway. While between the seventh and sixth floors, plaintiffslipped and fell, striking her back and neck on the stairs. At her deposition, plaintiff initiallystated that an oily substance caused her to slip, but she later stated that it was water. Plaintiffassumed that the water was melted ice that dripped while people were carrying ice up the stairs;however, plaintiff did not see any ice or water or any other liquid on the steps prior to heraccident.
Plaintiff commenced this action against defendant, claiming that defendant failed to removefluid that was on the stairs and failed to provide adequate lighting in the stairway. Defendantmoved for summary judgment dismissing the complaint on the grounds that it did not have noticeof the wet condition on the stairs, and that it had no duty to provide emergency lighting in thestairway. Supreme Court denied the motion.
With respect to plaintiff's claim that defendant failed to remove fluid that was on the stairs,defendant made a prima facie showing that it neither created nor had notice of such a condition.The evidence submitted by defendant demonstrated that defendant neither created nor [*2]had actual notice of the condition, and plaintiff does not argueotherwise. Similarly, defendant's evidence demonstrated that defendant lacked constructivenotice of the presence of liquid on the stairs. Notably, plaintiff expressly testified that prior to heraccident she did not see any ice or fluid on the stairs. "To constitute constructive notice, a defectmust be visible and apparent and it must exist for a sufficient length of time prior to the accidentto permit defendant's employees to discover and remedy it" (Gordon v American Museum ofNatural History, 67 NY2d 836, 837 [1986]). Given plaintiff's testimony that she did notobserve any ice or fluid on the stairs prior to her accident, defendant demonstrated that thecondition did not exist for a sufficient period of time for defendant to discover and remedy it (see Rivera v 2160 Realty Co., L.L.C., 4NY3d 837 [2005]; Berger v ISKManhattan, Inc., 10 AD3d 510 [2004]; Lancaster v New York City Hous. Auth.,226 AD2d 145 [1996]).
In opposition, plaintiff failed to raise a triable issue of fact. The conclusory assertions ofplaintiff and her husband that plaintiff slipped on water that leaked from bags of ice carried bytenants up the stairs are purely speculative. In any event, these assertions shed no light on thepivotal question of when the water appeared on the stairs.
Concerning plaintiff's claim that defendant failed to provide adequate lighting in thestairway, defendant made a prima facie showing that it did not breach any duty of care owed toplaintiff in this regard. Defendant maintained lights in the stairway, but those lights wererendered inoperable by the blackout. Plaintiff cited no statute or regulation imposing a duty ondefendant to illuminate the stairway during a blackout, i.e., an absolute duty to illuminate thestairway. To the contrary, before both the motion court and this Court plaintiff relied solely oncommon-law principles of premises liability in arguing that defendant had a duty to providelighting in the stairway during the blackout. However, defendant owed no such duty of care(see generally Peralta v Henriquez, 100 NY2d 139, 145 [2003]; Miller v Consolidated Rail Corp., 41AD3d 948, 952 [2007]).
Goldstein v Consolidated Edison Co. of N.Y. (115 AD2d 34 [1986], lvdenied 68 NY2d 604 [1986]), relied upon by plaintiff, is distinguishable. InGoldstein, the blackout of 1977 terminated all electricity to a building owned bydefendant Lind-Ric, causing the public hallways and stairways to become pitch-dark. During theblackout, no lighting of any kind was placed in the stairways by defendant's employees. Thebuilding's superintendent, along with his wife and children, assisted elderly residents in carryingpails of water from the street to their apartments. Approximately 12 hours after the blackout,plaintiff Morris Goldstein left his 13th-floor apartment and walked down one of the stairways,which he illuminated with a candle, and exited the building. After obtaining water from a friend'shome, Goldstein returned to the building, lit the candle and began ascending a staircase. At aboutthe third floor, the candle went out and Goldstein fell.
In sustaining that portion of a jury verdict in favor of plaintiffs and against Lind-Ric, theCourt rejected Lind-Ric's argument that it was not negligent. The Court noted that thesuperintendent created the hazardous situation that caused Goldstein's accident by encouragingtenants to obtain water from a street hydrant, which he had opened, and then ascend darkenedstairways back to their apartments (id. at 40-41).
Here, however, defendant's employees did not create the dangerous condition that causedplaintiff's accident. Specifically, defendant's employees neither encouraged tenants and visitors touse the stairway during the blackout nor caused water to accumulate on the stairs. Moreover, onlyapproximately three hours passed between the beginning of the blackout and plaintiff's [*3]accident, an insufficient amount of time for defendant to act in lightof the massive scale of the blackout.
This case is also distinguishable from this Court's recent decision in Kopsachilis v 130 E. 18 Owners Corp.(43 AD3d 744 [2007]). There, the plaintiff fell down an unlit stairway in a building ownedby defendants and sustained personal injuries, also during the 2003 blackout. The plaintiffcommenced an action against the defendants asserting that they negligently failed to providecontinuous light in the stairway. The plaintiff relied upon a statute that purportedly requires everylight in a windowless fire stair to be "kept burning continuously" (Multiple Dwelling Law§ 37 [3]) regardless of whether the owner has knowledge of or consents to theextinguishment of such lights (Kopsachilis, 43 AD3d at 745). Notably, the plaintiffspecifically identified the statute in her supplemental bill of particulars, and relied upon it both inmotion practice and on appeal. A divided panel affirmed an order denying the defendants' motionfor summary judgment dismissing the complaint, accepting the plaintiff's interpretation of thestatute.
Here, however, Multiple Dwelling Law § 37 is not in issue. Neither in her papers inopposition to the motion nor in her brief did plaintiff assert that defendant violated any statute;rather, she claimed that defendant violated the common-law duty of care it owed to her. Giventhe inapplicability of Multiple Dwelling Law § 37 in this case, Kopsachilis neithercontrols nor informs our disposition of this appeal. Concur—Andrias, J.P., Saxe, Buckley,Gonzalez and McGuire, JJ.