| Slates v New York City Hous. Auth. |
| 2010 NY Slip Op 08874 [79 AD3d 435] |
| December 2, 2010 |
| Appellate Division, First Department |
| June Slates, Respondent, v New York City Housing Authority,Appellant, and Stealth Contracting, Inc., Appellant-Respondent, et al.,Defendant. |
—[*1] Hodgson Russ LLP, New York (Margaret Cmielewski of counsel), for appellant-respondent. Kahn Gordon Timko & Rodriques, P.C., New York (Nicholas I. Timko of counsel), forrespondent.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered March 15, 2010,which, inter alia, denied defendants Stealth Contracting, Inc.'s and New York City Housing Authority's(NYCHA) motions for summary judgment dismissing the complaint as against them, unanimouslyreversed, on the law, without costs, the motions granted and the complaint dismissed as against Stealthand NYCHA. The Clerk is directed to enter judgment accordingly.
On the morning of February 14, 2006, plaintiff tripped and fell on black ice on a walkway outsideher residence, which was owned and maintained by NYCHA. At that time, the walkway was coveredby a sidewalk shed installed by Stealth.
Plaintiff testified at her deposition that she did not notice any ice or hazardous conditions on thewalkway prior to her fall. She testified that at the time she fell, she observed that the entire area wascovered by black ice. After she fell, she remained seated for 20 minutes and saw moisture comingdown from the side of the shed but did not feel or see any water dripping on her. NYCHA's premisescaretaker testified that, upon arriving at the scene of the accident, he observed a small patch of barelyvisible black ice, as well as some water dripping "by the ceiling or the roof" of the shed, which consistedof drops, rather than a steady stream of water.
The motion court properly found that Stealth had neither actual nor constructive knowledge of anyhazard, but erred in denying Stealth's motion for summary judgment. Plaintiff's reference to a few dropsof water and an alleged defect in the shed to explain both how the ice patch formed and how the entireaccident site was covered with ice is speculation. As such, it cannot serve to defeat Stealth's motion forsummary judgment (Listopad v Sherwood[*2]Equities, Inc., 52 AD3d 300 [2008]).
The motion court also erred in denying NYCHA's motion for summary judgment. The recordcontains no evidence that NYCHA had constructive or actual notice of the black ice, or that it createdthe condition (see Killeen v Our Lady ofMercy Med. Ctr., 35 AD3d 205 [2006]; Solazzo v New York City Tr. Auth., 21 AD3d 735 [2005], affd6 NY3d 734 [2005]; Cardinale v Watervliet Hous. Auth., 302 AD2d 666, 666-667 [2003]).The affidavit offered by plaintiff of a NYCHA employee who stated that she also fell on the date of theaccident contains no indication that she notified NYCHA of her mishap. Further, the affidavit ofplaintiff's son, which stated that earlier in the morning he observed slippery conditions and watercascading down the center of the shed, directly contradicted plaintiff's testimony that she did notobserve any hazardous condition prior to her fall. As such, that affidavit, introduced solely in oppositionto summary judgment, is self-serving and should have been disregarded. Finally, given the above,NYCHA is not entitled to indemnification for its defense costs. Concur—Sweeny, J.P.,Catterson, Moskowitz, Renwick and Richter, JJ. [Prior Case History: 2010 NY Slip Op30530(U).]