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Second Department Affirms Lower Court’s Decision But on the Grounds that Plaintiff Engaged in Speculation

March 14, 2019 • Posted By • Insurance Coverage

                RODRIGUEZ v. NEW YORK CITY HOUSING AUTHORITY

                                        N.Y.L.J – February 21, 2019

 

This is an action to recover damages for personal injuries. Jose Rodriguez appealed from an order of the Supreme Court of Kings County granting summary judgment in favor of the New York City Housing Authority. The Second Department affirmed the Lower Court’s decision but on different grounds.

This action to recover damages for personal injuries was commenced against the New York City Housing Authority. Rodriguez allegedly sustained injuries when he slipped and fell while descending a staircase in a building owned by New York City Housing Authority. Rodriguez alleged that he slipped, stumbled, and fell because of a “wet, slick, unattended, and slippery dirty substance on the treads of the stairs in the stairwell,” and that the New York City Housing Authority was negligent in the maintenance of said staircase.

Summary Judgment was awarded to New York City Housing Authority on the grounds that Rodriguez did not know what caused him to fall and that the New York City Housing Authority did not have actual or constructive notice of any dangerous condition on the stairs.

 The Second Department disagreed with the Lower Court’s determination that the New York City Housing Authority was entitled to summary judgment on the ground that it lacked notice of any defective condition. “In a slip-and-fall case, a defendant property owner moving for summary judgment has the burden of making a prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence” (Parietti v. Wal-Mart Stores, Inc., 29 NY3d 1136, 1137). “To meet its prima facie burden on the issue of constructive notice, the moving defendant must offer evidence as to when the area at issue was last cleaned or inspected before the accident” (see Quinones v. Starret City, Inc., 163 AD3d 1020, 1021).

“References to general cleaning practices is insufficient to establish a link of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area in question” (Rong Wen Wu v. Arniotes, 149 AD3d 786, 787). Here, New York City Housing Authority failed to establish that it did not have constructive notice of the alleged hazardous condition because it failed to present evidence regarding “specific cleaning or inspection of the area in question relative to the time when the subject accident occurred,” (see Quinones v. Starret City, Inc., 163 AD3d at 1022). Therefore, New York City Housing Authority was not entitled to Summary Judgment on the ground that it did not have notice of the alleged hazardous condition.     

However, the Court noted, “A defendant in a slip-and-fall case may also establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall without engaging in speculation.” New York City Housing Authority demonstrated its prima facie entitlement to Summary Judgment by submitting the Rodriguez’s General Municipal Law §50-h hearing and deposition transcripts, which demonstrated that he was unable to identify the cause of his fall without resorting to speculation.

Even though the Lower Court did not decide on the issue of whether Rodriguez cannot identify the cause of his fall without engaging in speculation, New York City Housing Authority moved for Summary Judgment on this ground and the issue was fully argued. Therefore, the New York City Housing Authority “may properly raise the issue as alternative ground for affirmance” (Parochial Bus Sys. v. Board of Educ. Of City of N.Y., 60 NY2d 539, 544-547).

The decision is well reasoned, the Second Department correctly affirmed the decision to grant Summary Judgment in favor of the defendant. Even though the Second Department disagreed with the reasoning of the lower court, it affirmed under a different basis that was fully argued by the defendant.

 

Joseph French, with the assistance of Michelle Yepes, a 3L at St. John’s University School of Law