Mazerbo v. Murphy

52 A.D.3d 1064, 860 N.Y.S.2d 289

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 2008
• Status: Published

Opinions

Cardona, EJ.

Appeal from an order of the Supreme Court (Aulisi, J.), entered June 13, 2007 in Fulton County, which denied defendant’s motion for summary judgment.

Flaintiff claims that on October 7, 2004, after arriving for his first day of work in a building owned by defendant, while traversing a dimly-lit hallway leading into the doorway of one of the offices, he tripped over a “protrusion” or bump in the concrete flooring that was covered by carpeting.¹ Subsequently, plaintiff commenced this action seeking damages for his injuries due to defendant’s alleged negligence in failing to properly maintain said flooring. Defendant thereafter moved for summary judgment dismissing the complaint. Supreme Court denied that motion, prompting this appeal.

Notably, to establish entitlement to summary judgment, defendant was required to demonstrate as a matter of law that he maintained the subject property in a reasonably safe condition and “neither created the allegedly dangerous condition existing thereon nor had actual or constructive notice thereof’ (Richardson v Rotterdam Sq. Mall, 289 AD2d 679, 679 [2001]; accord Mokszki v Pratt, 13 AD3d 709, 710 [2004]; see Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314, 1315 [2007]). Here, the record contains no proof establishing that defendant created the dangerous condition at issue, therefore, plaintiff cannot prevail on that theory. With respect to the issue of actual notice, defendant testified at his examination before trial that he had no specific knowledge of the protrusion in the carpet prior to plaintiffs fall. That statement was not contradicted by the deposition testimony of Carol Bowers, plaintiff’s coworker, who worked in the office that plaintiff was about to enter at the time of the accident. Bowers indicated that, although she witnessed plaintiffs accident and tripped over the same protrusion a “day or so” earlier, she had not informed defendant of this specific “bump in the carpet.” Thus, defendant correctly maintains that plaintiff did not raise arguable questions of fact concerning whether defendant created or had actual notice of the hazardous condition.

Nevertheless, turning to constructive notice, we conclude that Supreme Court properly denied defendant’s summary judgment motion on that issue. A plaintiff can establish constructive notice through evidence that the defendant “was aware of an ongoing and recurring unsafe condition which regularly went unaddressed” (Kivlan v Dake Bros., 255 AD2d 782, 783 [1998]; see Talavera v New York City Tr. Auth., 41 AD3d 135, 136 [2007]). In that regard, where “a property owner has ‘actual knowledge of the tendency of a particular dangerous condition to reoccur, he [or she] is charged with constructive notice of each specific recurrence of that condition’ ” (Kivlan v Dake Bros., 255 AD2d at 783, quoting Columbo v James River, II, Inc., 197 AD2d 760, 761 [1993]; see Weisenthal v Pickman, 153 AD2d 849, 851 [1989]).

Here, plaintiff presented proof demonstrating that defendant had previously received complaints concerning unevenness with respect to the concrete flooring in the approximate area where plaintiffs accident occurred. Specifically, Bowers testified that she and her coworkers complained on more than one occasion to defendant or his agent concerning the shifting concrete in the area by her office outside her door. She variously described the unevenness as “hole[s],” “dip[s]” or “indents” that would heave either up or down such that “[y]ou could feel yourself walking maybe one foot down, the other one not.” According to Bowers, the shifting in the floor occurred regularly during the entire 19 years she worked in the building and it mainly happened down by her office because it “is on the actual slab.” Notably, when asked how she “found out that the concrete had raised under the carpet” causing plaintiffs fall, Bowers replied, “Since ’87 it’s been that way.”² She also testified that after he was told about the concrete moving “up and down,” defendant generally would “have someone come in and pull the carpet or patch it.” However, problems would continue to recur.

If credited, this proof would establish that defendant had knowledge of a recurring tripping hazard³ in the same area, albeit not the precise place, where plaintiff later fell (see Gutz v County of Monroe, 221 AD2d 838, 839 [1995] [constructive notice of dangerous condition of tiles on stairs due to knowledge of “recurring problems with the tiles in other areas of the library”]; see also Armstrong v Ogden Allied Facility Mgt. Corp., 281 AD2d 317, 318 [2001] [constructive notice could be found based upon knowledge of a “similar hazardous condition that was known to have existed for at least two years elsewhere in the building”]). Since this and other proof in the record raises an inference that there was a known recurring and pervasive problem with the concrete underneath the carpeting in the area where plaintiff was injured which was only superficially worked on, but never adequately addressed so as to repair the underlying problem, we conclude that a triable issue of fact exists as to constructive notice, precluding summary judgment in defendant’s favor (see Talavera v New York City Tr. Auth., 41 AD3d at 136; Columbo v James River, II, Inc., 197 AD2d at 761).⁴

Peters and Malone Jr., JJ, concur.

1 . According to plaintiff, the protrusion “was probably three or four inches in diameter and it stood up about a little over an inch, maybe an inch in height.” In his deposition testimony, defendant confirmed the presence of a bump in the doorway and indicated it was caused by “unevenness” under the carpet at the point where two slabs of concrete met.

2 . We note that our dissenting colleagues have chosen to cite certain words in Bowers’ testimony as support for their view that the protrusion causing plaintiffs accident was somehow different from the prior defects that Bowers claims were reported to defendant. However, viewing her testimony as a whole, in context, and in the light most favorable to plaintiff as the nonmoving party (see Raven Indus., Inc. v Irvine, 40 AD3d 1241, 1242 [2007]), a fair inference to be drawn therefrom is that she considered the subject defect to be yet a further instance of an ongoing problem with the floor.

3 . The fact that protrusions, holes, dips or bumps in floors can constitute tripping hazards is well documented and we do not agree with our dissenting colleagues that a landowner has no duty of care with respect to a known hazard of that nature until after someone actually trips, falls or is injured.

4 . It must be reiterated that this case concerns the denial of a summary judgment motion and not an “imposition of liability.” There can be no question that the subject record contains numerous discrepancies, ambiguities and sharp credibility disputes that we believe should more appropriately be resolved by a trier of fact. We note that the role of an appellate court on such a motion is “ ‘[Tissue-finding, rather than issue-determination’ ” (Raven Indus., Inc. v Irvine, 40 AD3d at 1242, quoting Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).