| Raghu v New York City Hous. Auth. |
| 2010 NY Slip Op 02864 [72 AD3d 480] |
| April 8, 2010 |
| Appellate Division, First Department |
| Sumintra Raghu, Respondent, v New York City HousingAuthority, Appellant. |
—[*1] Zalman & Schnurman, New York (Norman E. Frowley of counsel), for respondent.
Order, Supreme Court, New York County (Marilyn Shafer, J.), entered August 25, 2009,which, in an action for personal injuries, denied defendant's motion for summary judgmentdismissing the complaint, unanimously reversed, on the law, without costs, and the motiongranted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.
On July 10, 2007, at about 8:30 a.m., plaintiff, a home health care worker, slipped and fell ona stairway in a building owned and operated by defendant, and sustained several fractures. At herGeneral Municipal Law § 50-h hearing, plaintiff testified that she fell while ascending thestairs between the second and third floors. Before she fell, she noticed that there was some"[w]hite, powdery stuff" on the steps, "all over the place." She had put her right foot on the step,then fell forward onto her knees.
Lorenzo Brown, the building janitor, testified that on the day in question he had swept theentire staircase of the building and the building next door, each of which has five stories,between 8:00 a.m. and 8:30 a.m. When asked if he had a specific memory of doing these thingson the day in question, he stated that he did, because he does the same routine every day. Whenasked what made him remember that particular day, he responded that it was because he did notchange his routine, and had found an efficient way of getting the job done. He further testifiedthat he did not remember ever seeing powder on the steps.
On or about November 18, 2008, plaintiff served an expert witness response stating that sheintended to call Dr. William Marletta, a certified safety professional. The gist of the opinion hewould offer was that the maintenance of the building departed from safe practice in that theaccumulation of powder made the staircase more slippery. He noted further that the stair treadswere not maintained in a clean and safe condition, that the stair risers varied in height from7½ to 8 inches high, rather than being uniform, and that the handrail was blocked andobstructed, with hand clearance of only one eighth of an inch at step five, while regulationsrequired clearance of one inch.
On or about April 24, 2009, defendant moved for summary judgment on the ground thatplaintiff could not make out a prima facie case of negligence because there was no evidence thatdefendant either created or had actual or constructive notice of the alleged defects which plaintiff[*2]claims to have caused her injuries. The motion court foundthat there was an issue as to constructive notice, arising from the janitor's credibility. The courtfound that Brown's recollection was equivocal, since he stated both that he had a specificmemory of cleaning the stairs that day, and that he was basing his recollection on his routine.
We conclude that defendant, in moving for summary judgment, met its initial burden ofdemonstrating that it neither created the hazardous condition, nor had actual or constructivenotice of its existence (see Smith vCostco Wholesale Corp., 50 AD3d 499, 500 [2008]). The janitor's testimony that hisregular routine included cleaning the stairwell between 8:00 a.m. and 8:30 a.m., and that he didnot observe any powder, was sufficient to shift the burden to plaintiff of demonstrating theexistence of questions of fact (seeVilomar v 490 E. 181st St. Hous. Dev. Fund Corp Corp., 50 AD3d 469, 470 [2008]).
Plaintiff's deposition testimony, offered in opposition, did not even attribute her fall to thepowder. She simply stated that she slipped, and observed that there was white powder at variouslocations in the stairwell. She did not testify that she actually slipped on the powder, and, in theabsence of such definitive testimony, the expert's conclusion that the accumulation of powder ledto her fall is purely speculative. Evidence of the existence of the powdery substance, "simplydoes not, in isolation, suffice to support a reasonable inference that the injury was sustainedwholly or in part by a cause for which the defendant was responsible" (Zanki v Cahill, 2 AD3d 197, 199[2003], affd 2 NY3d 783 [2004] [internal quotation marks and citations omitted]).
Plaintiff's contentions that the purported defects in either the risers or the handrails were theproximate cause of the accident are also unavailing. As noted, plaintiff simply stated that sheslipped. She did not attribute her fall to the unevenness of the risers, and there is thus noevidence which would allow the expert to connect plaintiff's fall to any purported defects in therisers (see Kane v Estia Greek Rest., 4 AD3d 189, 190 [2004]). Finally, the claim ofinadequacy of the handrail cannot avail plaintiff, inasmuch as her testimony was that she was notusing the handrail at the time of the accident (see Ridolfi v Williams, 49 AD3d 295 [2008]).Concur—Tom, J.P., Andrias, Friedman, Nardelli and Catterson, JJ.