| Rodriguez v Board of Educ. of the City of N.Y. |
| 2013 NY Slip Op 04912 [107 AD3d 651] |
| June 27, 2013 |
| Appellate Division, First Department |
| Jose Aquino Rodriguez et al., Appellants, v Boardof Education of the City of New York, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel),for respondent.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered May 7, 2012,which granted defendant Board of Education of the City of New York's motion forsummary judgment dismissing the complaint, unanimously reversed, on the law, withoutcosts, and the motion denied.
In this negligence action, it is alleged that the infant plaintiff was injured when heslipped and fell on liquid on the stairs of an elementary school. The notice of claimlimited plaintiffs' theory of liability to negligent maintenance, upkeep and repair of thesubject staircase, asserting that the infant plaintiff was caused to slip and fall due to aliquid substance on the floor and inadequate lighting. The infant plaintiff testified that hewas caused to fall by "slippery juice" that was "all over the stairs." He testified that hewasn't able to see all of the juice due to insufficient lighting. Plaintiffs' new theory, inopposition to the motion for summary judgment, that the infant plaintiff was caused toslip and fall due to various design defects including, inter alia, treads and risers ofinsufficient length, an improperly placed handrail and stairs not coated with nonskidmaterials, is precluded (seeRosenbaum v City of New York, 8 NY3d 1, 11-13 [2006]; Sutin v Manhattan & BronxSurface Tr. Operating Auth., 54 AD3d 616 [1st Dept 2008] [plaintiff whoasserted in notice of claim that bus driver had failed to stop the bus at a place from whichshe could safely disembark was precluded from raising the new theory, in opposition tothe defendant's motion for summary judgment, that the bus driver failed to "kneel" thebus prior to letting her off]; Chieffet v New York City Tr. Auth., 10 AD3d 526, 527[1st Dept 2004] [where notice of claim alleged injury due to slippery condition onstaircase, plaintiff precluded from later asserting in opposition to summary judgment thatthe staircase was in a "broken" condition]; accord Barksdale v New York City Tr.Auth., 294 AD2d 210, 211 [1st Dept 2002] [where notice of claim alleged negligentmaintenance of safety chains between subway cars, plaintiff precluded from laterasserting design defects in the gates "or other devices" between subway cars]).
The order appealed from should nonetheless be reversed and the motion deniedbecause defendant failed to meet its prima facie burden on a motion for summaryjudgment of [*2]establishing that it neither created norhad constructive notice of the hazardous condition (see e.g. Sabalza v Salgado, 85 AD3d 436, 437-438 [1stDept 2011]; Rodriguez v 705-7E. 179th St. Hous. Dev. Fund Corp., 79 AD3d 518, 519 [1st Dept 2010]).Defendant's supervising engineer testified only as to a general cleaning routine, but hadno personal knowledge as to whether the cleaning schedule was adhered to on the day ofthe accident, and he could not state when the staircase in question had last been cleanedor inspected prior to the accident. Moreover, he did not know whether the custodianresponsible for cleaning the staircase worked on the day of the accident and the custodiandid not testify or submit an affidavit (see Williams v New York City Hous. Auth., 99 AD3d 613[1st Dept 2012]; Peters vTrammell Crow Co., 47 AD3d 419, 420 [1st Dept 2008]; Deluna-Cole vTonali, Inc., 303 AD2d 186 [1st Dept 2003]). In addition, there is a question of factas to whether defendant created the hazardous condition since defendant failed to addressthe evidence of insufficient lighting, the use of semi-gloss paint on the steps and theirworn treads, all of which plaintiff alleges contributed to the accident.
We note that defendant improperly challenges the substantive merit of plaintiffs'expert opinion for the first time on appeal. Concur—Mazzarelli, J.P., Saxe,DeGrasse, Manzanet-Daniels and Clark, JJ.