| Perez v New York City Hous. Auth. |
| 2010 NY Slip Op 06235 [75 AD3d 629] |
| July 27, 2010 |
| Appellate Division, Second Department |
| Yadira Perez, Appellant, v New York City HousingAuthority, Respondent. |
—[*1] Herzfeld & Rubin, P.C., New York, N.Y. (Neil R. Finkston of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Kings County (Hurkin-Torres, J.), datedJanuary 22, 2009, as, upon reargument, granted the defendant's motion for summary judgmentdismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
Shortly after midnight, while descending an interior stairwell in a building owned by thedefendant, the plaintiff allegedly was injured when she slipped on a puddle of urine. In theplaintiff's ensuing personal injury action, the defendant moved for summary judgment dismissingthe complaint. The Supreme Court initially denied the defendant's motion but, upon reargument,granted it. We affirm.
A defendant moving for summary judgment in a slip-and-fall case has the initial burden ofestablishing, prima facie, that it neither created the alleged hazardous condition nor had actual orconstructive notice of its existence (seeEdwards v Great Atl. & Pac. Tea Co., Inc., 71 AD3d 721 [2010]; Gregg v Key Food Supermarket, 50AD3d 1093 [2008]; Perlongo vPark City 3 & 4 Apts., Inc., 31 AD3d 409, 410 [2006]). A defendant has constructivenotice of a hazardous condition on property when the condition is visible and apparent, and hasexisted for a length of time sufficient to afford the defendant a reasonable opportunity todiscover and remedy it (see Gordon v American Museum of Natural History, 67 NY2d836, 837 [1986]; Davis v Rochdale Vil.,Inc., 63 AD3d 870, 870-871 [2009]; Latalladi v Peter Luger Steakhouse, 52 AD3d 475, 476 [2008]).
Here, the defendant established its prima facie entitlement to judgment as a matter of law bysubmitting, inter alia, the deposition testimony and an affidavit of Lynn Carter, the personassigned to clean the building. According to Carter, she had last inspected the stairwell atapproximately 3:00 p.m. the previous day, approximately nine hours before the plaintiffallegedly was injured, and there was no liquid on the stairwell at that time. Additionally, thedefendant [*2]submitted evidence that no one had complainedabout the condition of the stairwell between the time it was last inspected and the time of theplaintiff's alleged injury (see Williams vSNS Realty of Long Is., Inc., 70 AD3d 1034 [2010]; Rios v New York City Hous. Auth., 48 AD3d 661, 662 [2008]).
In opposition, the plaintiff failed to raise a triable issue of fact (see Prusak v New York City Hous.Auth., 43 AD3d 1022, 1022-1023 [2007]; Gloria v MGM Emerald Enters., 298AD2d 355, 356 [2002]). In her discovery responses, the plaintiff did not disclose the nonpartywitnesses upon whose affidavits she relied to establish that the defendant had actual notice of arecurrent condition in the stairwell (seeBrown v Linden Plaza Hous. Co., Inc., 36 AD3d 742 [2007]; Perez v Mekulovic, 13 AD3d 158,159 [2004]; Weisenthal v Pickman, 153 AD2d 849, 850-851 [1989]). Given that theplaintiff did not explain this failure, we find, as a matter of discretion, that those affidavitsshould not have been considered (see Andujar v Benenson Inv. Co., 299 AD2d 503[2002]; Robinson v New York City Hous. Auth., 183 AD2d 434, 434-435 [1992]; cf.Pearson v City of New York, 74 AD3d 1160, 1161-1162 [2010]). Absent consideration ofthe affidavits, the plaintiff failed to raise a triable issue of fact as to notice (see Mankowski vTwo Park Co., 225 AD2d 673 [1996]). Consequently, upon reargument, the Supreme Courtproperly granted the defendant's motion for summary judgment dismissing the complaint.Prudenti, P.J., Fisher, Roman and Sgroi, JJ., concur.