Eleazar v. New York City Tr. Auth.

Eleazar v New York City Tr. Auth.

2024 NY Slip Op 32328(U)

July 9, 2024

Supreme Court, New York County

Docket Number: Index No. 156191/2019

Judge: Richard Tsai

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

INDEX NO. 156191/2019

NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 07/09/2024

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. RICHARD TSAI PART 21

Justice

----------------------------------------------------------------- ----------------X INDEX NO. 156191/2019

CHARO ELEAZAR

MOTION DATE 05/06/2024

Plaintiff,

MOTION SEQ. NO. 002

- V -

NEW YORK CITY TRANSIT AUTHORITY, DECISION + ORDER ON

MOTION

Defendant.

------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 37-53

were read on this motion to/for JUDGMENT - SUMMARY

In this slip and fall action, plaintiff Charo Eleazar alleges that she slipped while

descending a subway street staircase, causing her to suffer injuries. Defendant New

York City Transit Authority now moves for summary judgment pursuant to CPLR § 3211

and 3212 on the grounds that defendant neither created nor had notice of any

dangerous condition alleged to have caused plaintiff's injuries. Plaintiff opposes this

motion.

BACKGROUND

Plaintiff states that, on November 28 th , 2018, she slipped while walking down the

"S8" staircase of the 34 th Street Herald Square Station (defendant's exhibit B, complaint

,i 12 [NYSCEF Doc No. 42]). Defendant admits to operating, maintaining, and

inspecting this station (defendant's exhibit C, verified answer ,i 5 [NYSCEF Doc No.

43]).

At plaintiff's statutory hearing, plaintiff testified that it was neither raining nor

snowing on the day of her accident, and that the ground was completely dry

(defendant's exhibit F, statutory hearing tr at 33 lines 7-25; at 34 line 1 [NYSCEF Doc

No. 46]). She claimed that she slipped due to "dirty," "brown," water accumulated on the

second step from the bottom (id. at 36 lines 21-22; at 37 lines 1-6). Plaintiff further

claimed that the previous steps were dry and that only the second step from the bottom

had water on it (id. at 37 lines 8-9). She conceded that she was unaware of how long

the water was on the step before she slipped on it (id. at 38 lines 2-4). She confirms

that she did not report this accident to any employee of the Transit Authority, although

she made a report with medical personnel that arrived at the scene (id. at 41 lines 1-11).

At plaintiff's deposition, she stated that there were no warning signs on the steps

(defendant's exhibit G, plaintiff EBT tr at 23 lines 8-11 [NYSCEF Doc No. 47]). She

admitted she did not make any report about the condition of the steps prior to the

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accident (id. at 25 lines 13-18). She also conceded that she does not know if any prior

complaints about the condition of the steps had been made by anyone else (id. at 25

lines 19-22).

Defendant contends that it does not have any report of plaintiff's injuries on the

day of the accident (affirmation of defendant's counsel in support of motion ,I 3).

Defendant claims that it was "not aware of the accident until receipt of plaintiff's Notice

of Claim" issued two months post-accident (id.).

Wayne Tucker testified at his deposition that he was a station cleaner for the 34 th

Street Herald Square Station at the time of the incident (defendant's exhibit H,

defendant EBT tr at 8, lines 6-25 [NYSCEF Doc No. 48]). According to Tucker, there

would have been three assigned cleaners at the time of the incident and that each

cleaner is assigned a specific area (id. at 13 lines 2-7). When asked if he was assigned

to the S8 staircase on the day of the accident, he answered, "I could not say" (id. at 13

lines 8-10). When asked if he wrote an accident report on the day of the accident due

to the liquid on the S8 staircase, he answered "I do not recall" (id. at 13 lines 17-21 ).

Regarding cleaning procedures for liquids, Tucker stated, "[i]f the liquid was small

enough, I have rags in my pocket. I would cover the liquid with a rag and sweep it up. If

it was too large, I would get a mop and mop it up" (id. at 13 lines 23-25; at 14 lines 2-4).

He stated that he does not fill out written reports "if there was spilled liquid on the

stairway and [he] wiped it up" (id. at 14 lines 23-25; at 15 line 1).

In defendant's affidavit, Tucker admitted that he has "no personal knowledge of

plaintiff's alleged accident" (defendant's exhibit I, Tucker aff,I 4 [NYSCEF Doc No. 49]).

Despite having no personal recollection of his cleaning practices at the time of the

incident, he claimed that he would have followed an assigned cleaning schedule (id. ,I,I

5-6). He stated that, based on the cleaning schedule attached, "[he] would have cleaned

and swept all of the street stairs between the hours of 7:00 a.m. and 8:00 a.m. and then

swept them for a second time between the hours of 12:00 p.m. and 1:00 p.m." (id.).

DISCUSSION

"On a motion for summary judgment, the moving party must make a prima

facie showing of entitlement to judgment as a matter of law, tendering

sufficient evidence to demonstrate the absence of any material issues of

fact. If the moving party produces the required evidence, the burden shifts

to the nonmoving party to establish the existence of material issues of fact

which require a trial of the action" (Xiang Fu He v Troon Mgt., Inc., 34

NY3d 167, 175 [2019] [internal citations and quotation marks omitted]).

On a motion for summary judgement, "facts must be viewed in the light most favorable

to the non-moving party" (Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012]

[internal quotation marks omitted]).

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Defendant argues that it is entitled to summary judgment as a matter of law

because plaintiff has not produced evidence showing that defendant either created or

had notice of the dangerous condition (affirmation of defendant's counsel in support of

motion ,i 12 [NYSCEF Doc No. 39]).

To be entitled to summary judgment in a slip and fall case, defendant 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" (Rodriguez v Kwik Realty, LLC,

216 AD3d 477, 478 [1st Dept 2023] [internal quotation marks omitted]). Only when the

defendant has met its initial burden as movant will the burden shift to the plaintiff "to

establish how long the condition had been in existence" ( Sabalza v Salgado, 85 AD3d

436, 438 [1st Dept 2011]).

Here, defendant has not met its prim a facie burden.

"Actual notice may be found where a defendant either created the condition, or

was aware of its existence prior to the accident" (Atashi v Fred-Doug 117 LLC, 87 AD3d

455, 456 [1st Dept 2011]). "Constructive notice may be found when a defect has been

"visible and apparent for a sufficient length of time to permit the defendant's employees

to discover and remedy it" (id. at 456). "A defendant demonstrates lack of constructive

notice by producing evidence of its maintenance activities on the day of the accident,

and specifically that the dangerous condition did not exist when the area was last

inspected or cleaned before plaintiff fell ( Seleznyov v New York City Transit Authority,

113 AD3d 497, 498 [1st Dept 2014]; Ross v Betty G. Reader Revocable Trust, 86 AD3d

419,421 [1st Dept 2011]).

Here, defendant appears to rely on the affidavit, deposition and attached

cleaning schedule of their witness, Tucker, to show that "the staircase would have been

cleaned twice before plaintiff's accident, [with] the last time being only 45 minutes to

plaintiff's accident" (Tucker aff ,i 7).

However, Tucker stated, "I do not have any independent recollection of the day in

question" (Tucker aff ,i 5). At his deposition, Tucker did not recall if he was assigned to

the S8 staircase on the date of the incident (defendant EBT tr at 13, lines 8-20). Thus,

the existence of the cleaning schedule was the basis of Tucker's belief that it had been

followed. However, evidence "that a [cleaning] schedule merely existed does not suffice

for purposes of showing that it was followed" ( Gautier v 941 lntervale Realty LLC., 108

AD3d 481,481 [1st Dept 2013]). Because Tucker had no independent recollection of

his cleaning procedures on the day of the accident, defendant did not establish that

Tucker had cleaned the S8 staircase 45 minutes prior to the accident (Carela v New

York City Tr. Auth., 175 AD3d 419 [1st Dept 2019] [cleaner did not have an independent

recollection of when the staircase was last cleaned or inspected prior to the accident]).

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Because defendant did not meet its prima facie burden of demonstrating lack of

constructive notice, the court need not address whether defendant established lack of

actual notice or that it did not cause or create the alleged condition.

Although plaintiff "does not know where the alleged dirty water came from or how

long it existed prior to her accident" (id. ,r 6), "[a] defendant cannot satisfy its burden

merely by pointing out gaps in the plaintiff's case" ( Sabalza v Salgado, 85 AD3d 436,

438 [1st Dept 2011]). By arguing that "plaintiff does not know whether or not the

substance was coffee, soda or just dirty water from subway pedestrian traffic," and that

the alleged "dirty water [was] on only one step of the staircase" (reply affirmation

[NYSCEF Doc. No 53] ,r,r 4-6), defendant appears to be merely pointing at gaps in proof

of the merits of plaintiff's case.

CONCLUSION

Upon the foregoing documents, it is ORDERED that the defendant's motion for

summary judgment (Motion Sequence No. 002) is DENIED.

This constitutes the decision and order of the court.

20240709122757RTS~C4388979C2E6775E4BB

7/9/2024

8

DATE RICHARD TSAI, J.S.C.

~

CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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