Costanzo v. Woman's Christian Ass'n of Jamestown

[1257] Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedly sustained when he slipped and fell on clear liquid on a stairway in defendant Woman’s Christian Association Hospital (hereafter, hospital), owned by defendant the Woman’s Christian Association of Jamestown, New York. We agree with defendants that Supreme Court erred in denying their motion for summary judgment dismissing the complaint. Defendants met their initial burden of establishing as a matter of law that they “ ‘did not create the [allegedly] dangerous condition that caused plaintiff to fall and did not have actual or constructive notice thereof ” (Ferguson v County of Niagara, 49 AD3d 1313, 1314 [2008]; see Lane v Wilmorite, Inc., 1 AD3d 907, 908 [2003]; cf. Rapini v New Plan Excel Realty Trust, Inc., 11 AD3d 890 [2004]). With respect to the creation of the condition, defendants submitted evidence that the stairway is used by hospital employees and the public alike, and on the record before us, any conclusion that an employee of the hospital, as opposed to a member of the general public, spilled the liquid at issue would be mere speculation (see Castore v Tutto Bene Rest. Inc., 77 AD3d 599 [2010]; Berger v ISK Manhattan, Inc., 10 AD3d 510 [2004]). As for actual notice, defendants met their initial burden through the submission of, inter alia, the deposition testimony of various employees who testified that they were not aware of any complaints concerning the stairway prior to plaintiffs fall and that they did not observe any water or other substances on the stairway before that time (see Ferington v Dudkowski, 49 AD3d 1267 [2008]; Quinn v Holiday Health & Fitness Ctrs. of N.Y., Inc., 15 AD3d 857 [2005]). Finally, defendants met their initial burden on the issue of constructive notice of the wet condition by submitting, inter alia, plaintiffs deposition testimony that he did not see any liquid on the stairs when he ascended the stairway 5 to 10 minutes before his fall. We thus conclude therefrom that defendants “established as a matter of law that [the wet condition] on the [stairway] formed so close in time to the accident that [they] could not reasonably have been expected to notice and remedy the condition” (Steele [1258] v Lafferty, 79 AD3d 1802, 1803 [2010] [internal quotation marks omitted]; see Branham v Loews Orpheum Cinemas, Inc., 31 AD3d 319, 322-323 [2006], affd 8 NY3d 931 [2007]; Berger, 10 AD3d at 511-512). In opposition to the motion, plaintiff failed to raise a triable issue of fact as to defendants’ creation or notice of the wet condition (see generally Majchrzak v Harry’s Harbour Place Grille, Inc., 28 AD3d 1109 [2006]; Lane, 1 AD3d at 908; Fowler v St. Luke’s Mem. Hosp. Ctr. [appeal No. 2], 273 AD2d 893 [2000]). Plaintiffs “ ‘speculation with respect to . . . the length of time [the liquid] was on the floor is insufficient to raise a triable issue of fact’ ” (Bellassai v Roberts Wesleyan Coll., 59 AD3d 1125, 1126 [2009]; see Berger, 10 AD3d at 512-513; Gloria v MGM Emerald Enters., 298 AD2d 355, 355-356 [2002]). All concur except Garni and Lindley, JJ., who dissent in part and vote to modify in accordance with the following memorandum.