Clarke v. Verizon New York, Inc.

Appellate Division of the Supreme Court of New York

Clarke v. Verizon New York, Inc.

138 A.D.3d 505, 29 N.Y.S.3d 329

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 12, 2016

Docket812 156226/12

StatusPublished

Cited by4 cases

This text of 138 A.D.3d 505 (Clarke v. Verizon New York, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clarke v. Verizon New York, Inc., 138 A.D.3d 505, 29 N.Y.S.3d 329 (N.Y. Ct. App. 2016).

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Opinion

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered June 9, 2015, which granted the motion of defendant Verizon New York, Inc. (Verizon) for summary judgment *506 dismissing the complaint as against it, unanimously affirmed, without costs.

Verizon established entitlement to judgment as a matter of law in this action where plaintiff Naquan Clarke alleges that he was injured when, during the course of a rainstorm, he fell while using a worn and slippery ramp that was used for deliveries at Verizon’s building. Verizon submitted testimonial and photographic evidence showing that the claimed defect was not actionable, as “[m]ere wetness on a walking surface due to rain does not constitute a dangerous condition” (Ceron v Yeshiva Univ., 126 AD3d 630, 632 [1st Dept 2015]). There was also a lack of prior complaints or injuries relating to the ramp (see Savio v Rose Flower Chinese Rest., Inc., 103 AD3d 575 [1st Dept 2013]). Contrary to plaintiffs’ contention, Verizon was not required to submit an expert affidavit under the circumstances presented.

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff’s expert merely described the surface of the ramp as worn and shiny, concluding that it was dangerously slippery when dry, and even more so when wet. This conclusion, unsupported by any empirical data obtained by scientific analysis, was insufficient to raise an issue of fact (see Ceron at 632; Sims v 3349 Hull Ave. Realty Co. LLC, 106 AD3d 466 [1st Dept 2013]). Furthermore, the statements allegedly made to plaintiff by the building security guard concerning the slippery nature of the ramp do not qualify under the speaking agent exception to hearsay (see Tyrrell v Wal-Mart Stores, 97 NY2d 650 [2001]; Gordzica v New York City Tr. Auth., 103 AD3d 598 [1st Dept 2013]).

Concur — Tom, J.P., Andrias, Manzanet-Daniels, Kapnick and Gesmer, JJ.

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Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered June 9, 2015, which granted the motion of defendant Verizon New York, Inc. (Verizon) for summary judgment *506 dismissing the complaint as against it, unanimously affirmed, without costs.

Verizon established entitlement to judgment as a matter of law in this action where plaintiff Naquan Clarke alleges that he was injured when, during the course of a rainstorm, he fell while using a worn and slippery ramp that was used for deliveries at Verizon’s building. Verizon submitted testimonial and photographic evidence showing that the claimed defect was not actionable, as “[m]ere wetness on a walking surface due to rain does not constitute a dangerous condition” (Ceron v Yeshiva Univ., 126 AD3d 630, 632 [1st Dept 2015]). There was also a lack of prior complaints or injuries relating to the ramp (see Savio v Rose Flower Chinese Rest., Inc., 103 AD3d 575 [1st Dept 2013]). Contrary to plaintiffs’ contention, Verizon was not required to submit an expert affidavit under the circumstances presented.

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff’s expert merely described the surface of the ramp as worn and shiny, concluding that it was dangerously slippery when dry, and even more so when wet. This conclusion, unsupported by any empirical data obtained by scientific analysis, was insufficient to raise an issue of fact (see Ceron at 632; Sims v 3349 Hull Ave. Realty Co. LLC, 106 AD3d 466 [1st Dept 2013]). Furthermore, the statements allegedly made to plaintiff by the building security guard concerning the slippery nature of the ramp do not qualify under the speaking agent exception to hearsay (see Tyrrell v Wal-Mart Stores, 97 NY2d 650 [2001]; Gordzica v New York City Tr. Auth., 103 AD3d 598 [1st Dept 2013]).

Concur — Tom, J.P., Andrias, Manzanet-Daniels, Kapnick and Gesmer, JJ.

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Bluebook (online)

138 A.D.3d 505, 29 N.Y.S.3d 329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clarke-v-verizon-new-york-inc-nyappdiv-2016.

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