| Taylor v Jaslove |
| 2009 NY Slip Op 02986 [61 AD3d 743] |
| April 14, 2009 |
| Appellate Division, Second Department |
| Claudia Taylor, Respondent, v Leslie Jaslove,Appellant. |
—[*1] Segal & Lax, LLP, New York, N.Y. (Patrick Daniel Gatti of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Schmidt, J.), dated February 14, 2008, which denied hismotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
On February 25, 2005 five inches of snow accumulated during a snowstorm that ended at7:00 a.m. At approximately 9:00 a.m. the plaintiff, a home health aide, was making her first visitof the day to a client who lived in an apartment in a building owned by the defendant. Thepathway leading from the sidewalk to the building had not yet been shoveled when the plaintiffarrived. Nevertheless, she successfully negotiated the path, opened the front door, and enteredthe foyer of the building. She then climbed three steps to reach a second door but found itlocked. After she was unable to reach her client by cell phone, the plaintiff turned back to walkdown the steps to buzz the client on the intercom. As she took her first step, she slipped and fell,sustaining injuries. She subsequently commenced this personal injury action against thedefendant, alleging that her injuries were caused by "excessive moisture" in the foyer. Thedefendant moved for summary judgment dismissing the complaint. The court denied the motionand the defendant appeals. We reverse.[*2]
The defendant established his prima facie entitlement tojudgment as a matter of law by demonstrating that he neither created the alleged hazardouscondition, nor had actual or constructive notice of it (see Miguel v SJS Assoc., LLC, 40 AD3d 942, 944 [2007]; Rodriguez v White Plains Pub. Schools,35 AD3d 704, 705 [2006]; Perlongo v Park City 3 & 4 Apts., Inc., 31 AD3d 409 [2006]; Murphy v Lawrence Towers Apts.,LLC, 15 AD3d 371 [2005]). The defendant offered evidence to establish that he had notreceived any complaints regarding water accumulating in the foyer and had never seen any suchaccumulation. Further, he offered the plaintiff's deposition testimony in which she stated that shedid not see any water on the steps either before or after the accident, but concluded that the floorwas wet because her clothes were wet after she fell. In opposition, the plaintiff failed to raise atriable issue of fact regarding the alleged dangerous condition (see Gordon v AmericanMuseum of Natural History, 67 NY2d 836, 837 [1986]; Yearwood v Cushman &Wakefield, 294 AD2d 568, 569 [2002]). Moreover, the plaintiff's contention that thestairway was not in compliance with the applicable Building Code was improperly raised for thefirst time in opposition to the defendant's motion. In any event, the plaintiff failed to present anyevidence in support of her contention (see Prisco v Long Is. Univ., 258 AD2d 451, 452[1999]). Accordingly, the defendant's motion for summary judgment dismissing the complaintshould have been granted. Skelos, J.P., Fisher, Florio and Leventhal, JJ., concur.