| Anderson v Skidmore Coll. |
| 2012 NY Slip Op 02549 [94 AD3d 1203] |
| April 5, 2012 |
| Appellate Division, Third Department |
| Laura S. Anderson, Appellant, v Skidmore College,Respondent. |
—[*1] Bond, Schoeneck & King, Albany (Stuart F. Klein of counsel), for respondent.
Rose, J. Appeal from an order of the Supreme Court (Ferradino, J.), entered December 21,2010 in Saratoga County, which granted defendant's motion for summary judgment dismissingthe complaint.
Plaintiff and her friend visited defendant's campus in late July 2008 to take part in a reunionplanning meeting and were assigned to stay at an on-campus apartment. Soon after they arrived atthe apartment, plaintiff turned on the shower to allow the water to warm up and left the bathroomto disrobe. Upon stepping back into the bathroom, she slipped and fell, fracturing her wrist.According to both plaintiff and her friend, they then observed the showerhead, which appeared tobe clogged in some fashion, spraying water onto the ceiling and over the shower curtain onto thebathroom floor. Plaintiff later commenced this action alleging that defendant negligentlymaintained the bathroom by permitting the defective showerhead to spray water over the top ofthe shower curtain, making the floor dangerously slippery. In addition, plaintiff alleged that soapor polish had been negligently applied to the floor, thereby increasing the danger. After joinder ofissue and discovery, defendant moved for summary judgment dismissing the complaint. SupremeCourt granted the motion, and plaintiff now appeals.
Beginning with the alleged overspray condition, plaintiff contends that defendant failed tosustain its threshold burden of establishing as a matter of law that it did not have actual orconstructive notice (see Kearsey vVestal Park, LLC, 71 AD3d 1363, 1365 [2010]; Raczes v [*2]Horne, 68 AD3d1521, 1522 [2009]; Ensher vCharlton, 64 AD3d 1032, 1033 [2009]). The record reflects that defendant met its initialburden of showing that it did not have actual notice, but we must agree with plaintiff thatdefendant has not shown a lack of constructive notice. "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] [citations omitted]).
In an effort to meet its burden, defendant submitted an affidavit from its manager of custodialoperations who stated that the apartment in question was cleaned after the end of the academicyear, a fact that is not in issue. The record also establishes that the apartment was unoccupiedfrom the end of the academic year until plaintiff's arrival. According to the manager, as part ofthe usual cleaning process, his staff has a "custom and practice" of turning on the showers tocheck their operation. He avers that any overspraying condition would have been reported to himor one of his staff supervisors, and no such problem was ever reported. Noticeably missing,however, is any evidence from the staff person assigned to clean the apartment in question, oreven from the staff person's immediate supervisor, that this inspection was in fact performed aspart of the staff person's own routine on the day the apartment was cleaned.
In our view, defendant's submission of the manager's expectation was insufficient to meet itsburden of showing that it did not have constructive notice of the alleged overspray condition inthe absence of evidence that the routine was followed (see Baptiste v 1626 Meat Corp., 45 AD3d 259 [2007]; Yioves v T.J. Maxx, Inc., 29 AD3d572, 572-573 [2006]; Rosati vKohl's Dept. Stores, 1 AD3d 674, 675 [2003]; Lorenzo v Plitt Theatres, 267AD2d 54, 55 [1999]; Edwards v Wal-Mart Stores, 243 AD2d 803, 803 [1997]). Viewingthis evidence in a light most favorable to plaintiff, as we must, and according her every favorableinference (see Kearsey v Vestal Park, LLC, 71 AD3d at 1365; Brown v Haylor, Freyer & Coon, Inc.,60 AD3d 1188, 1190 [2009]), we agree with her that a jury could reasonably infer that,because the apartment remained unoccupied until the arrival of plaintiff and her friend on July26, 2008, the overspray condition that they described existed at the time the apartment shouldhave been inspected, and defendant should have been aware of the condition and corrected itprior to her occupancy. Inasmuch as defendant failed to satisfy its burden with respect toconstructive notice of the alleged overspray condition, we need not reach the sufficiency ofplaintiff's opposing proof (see Moss vCapital Dist. Regional Off-Track Betting Corp., 90 AD3d 1379, 1381-1382 [2011]; Keating v Town of Burke, 86 AD3d660, 662 [2011]; Edwards v Wal-Mart Stores, 243 AD2d at 804).
We cannot agree, however, with plaintiff's contention that defendant failed to sustain itsburden with respect to the allegation that it affirmatively caused the slippery condition bynegligently applying soap or polish to the floor to increase its slipperiness (see Murphy vConner, 84 NY2d 969, 971 [1994]). Defendant established its entitlement to summaryjudgment eliminating this issue from the case with proof that "the bathroom floors are not waxed,polished, buffed, sealed, stripped or resurfaced" but are cleaned only with a disinfectant eachtime there is a change in occupancy (see Keller v 800 N. Pearl St. Assoc., 277 AD2d 775,776 [2000]). In response, the affidavit of plaintiff's expert, containing the conclusory allegationthat some type of cleaning product may have been improperly applied to the floor, wasinsufficient to raise a triable issue of fact (see Van Alstyne v Fonda Refm. Church, 224AD2d 901, 902 [1996]). Nor can we [*3]agree with plaintiff thatthe doctrine of res ipsa loquitur is applicable here, given the possibility that plaintiff's fall wascaused by her own misstep (see Cortes vCentral El., Inc., 45 AD3d 323, 324 [2007]).
Peters, J.P., Kavanagh, Garry and Egan Jr., JJ., concur. Ordered that the order is reversed, onthe law, with costs, and motion denied.