Dylan P. Ex Rel. Raisa L. v. Webster Place Associates, L.P.

Appellate Division of the Supreme Court of New York

Dylan P. Ex Rel. Raisa L. v. Webster Place Associates, L.P.

132 A.D.3d 537, 18 N.Y.S.3d 42

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

DecidedOctober 20, 2015

Docket15099 7412/07

StatusPublished

Cited by3 cases

This text of 132 A.D.3d 537 (Dylan P. Ex Rel. Raisa L. v. Webster Place Associates, L.P.) 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.

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Dylan P. Ex Rel. Raisa L. v. Webster Place Associates, L.P., 132 A.D.3d 537, 18 N.Y.S.3d 42 (N.Y. Ct. App. 2015).

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Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered April 4, 2014, which granted defendant Webster Place [538]*538Associates, L.P.’s motion for summary judgment dismissing plaintiffs’ complaint, reversed, on the law, without costs, and the motion denied.

Defendant building owner moved for summary judgment solely on the basis that it had neither actual nor constructive notice of the alleged dangerous condition, a missing drain cover in the building’s laundry room. Defendant failed to meet its initial burden of demonstrating that it did not have constructive notice (see Williams v New York City Hous. Auth., 99 AD3d 613 [1st Dept 2012]). Although the building superintendent testified that he routinely swept the laundry room every morning at 8:00 a.m. and performed daily inspections of the building, including the laundry room, at 11:00 a.m. and 8:00 p.m. each day, mere proof of a set janitorial schedule does not prove that it was followed on the day of the accident, or eliminate the issue of constructive notice in this case (see Gautier v 941 Intervale Realty LLC, 108 AD3d 481 [1st Dept 2013]; Aviles v 2333 1st Corp., 66 AD3d 432 [1st Dept 2009]). The superintendent could not recall whether he had checked the laundry room on the day of the accident or offer any other evidence regarding the last time he inspected the laundry room prior to the accident (see Raghu v New York City Hous. Auth., 72 AD3d 480 [1st Dept 2010] [janitor had a specific memory of following the cleaning schedule on the day of the accident]). He explicitly stated that he did know whether the allegedly defective condition existed on that date.

Since defendant failed to demonstrate adherence to the building maintenance and inspection schedule on the date of the accident, summary judgment was improperly granted (Gautier v 941 Intervale Realty LLC, 108 AD3d at 481-482). Although the dissent has examined the substance of plaintiffs’ opposition and found it lacking, in view of defendant’s failure to tender sufficient evidence to eliminate any material issues of fact on the issue of constructive notice, we need not address the sufficiency of such opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Concur — Sweeny, Moskowitz and Gische, JJ.

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Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered April 4, 2014, which granted defendant Webster Place [538]*538Associates, L.P.’s motion for summary judgment dismissing plaintiffs’ complaint, reversed, on the law, without costs, and the motion denied.

Defendant building owner moved for summary judgment solely on the basis that it had neither actual nor constructive notice of the alleged dangerous condition, a missing drain cover in the building’s laundry room. Defendant failed to meet its initial burden of demonstrating that it did not have constructive notice (see Williams v New York City Hous. Auth., 99 AD3d 613 [1st Dept 2012]). Although the building superintendent testified that he routinely swept the laundry room every morning at 8:00 a.m. and performed daily inspections of the building, including the laundry room, at 11:00 a.m. and 8:00 p.m. each day, mere proof of a set janitorial schedule does not prove that it was followed on the day of the accident, or eliminate the issue of constructive notice in this case (see Gautier v 941 Intervale Realty LLC, 108 AD3d 481 [1st Dept 2013]; Aviles v 2333 1st Corp., 66 AD3d 432 [1st Dept 2009]). The superintendent could not recall whether he had checked the laundry room on the day of the accident or offer any other evidence regarding the last time he inspected the laundry room prior to the accident (see Raghu v New York City Hous. Auth., 72 AD3d 480 [1st Dept 2010] [janitor had a specific memory of following the cleaning schedule on the day of the accident]). He explicitly stated that he did know whether the allegedly defective condition existed on that date.

Since defendant failed to demonstrate adherence to the building maintenance and inspection schedule on the date of the accident, summary judgment was improperly granted (Gautier v 941 Intervale Realty LLC, 108 AD3d at 481-482). Although the dissent has examined the substance of plaintiffs’ opposition and found it lacking, in view of defendant’s failure to tender sufficient evidence to eliminate any material issues of fact on the issue of constructive notice, we need not address the sufficiency of such opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Concur — Sweeny, Moskowitz and Gische, JJ.

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132 A.D.3d 537, 18 N.Y.S.3d 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dylan-p-ex-rel-raisa-l-v-webster-place-associates-lp-nyappdiv-2015.

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