Perez v. Bronx TLV Equities LLC

2025 NY Slip Op 35174(U)

Opinion

Perez v Bronx TLV Equities LLC 2025 NY Slip Op 35174(U)

December 31, 2025

Supreme Court, Bronx County Docket Number: Index No. 27804/2020E Judge: Elizabeth A. Taylor 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.

FILED: BRONX COUNTY CLERK 01/02/2026 03:47 PM INDEX NO. 27804/2020E

C

NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 01/02/2026

NEW YORK SUPREME COURT - COUNTY OF BRONX

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX : PART IA2 -------------------------------------------------------------------X RAFAEL PEREZ, Index N11. 27804/2020E Hon. Elizabeth A. Taylor, Plaintiff, Justice Supreme Court

-against-

BRONX TL V EQUITIES LLC,

Defendant.

--------------------------------------------------------------------X The following papers numbered _ _ to _were read on this motion (NYSCEF Seq. No. 1)

NYSCEF Doc. Nos.

[Notice of Motion - Exhibits and Affidavits Annexed 20-30 !Answering Affidavit and Exhibits, Memorandum of Law 33-40 Reply Affidavit 41-43

Upon the foregoing papers, the defendant's motion for summary judgment is decided in accordance with the annexed decision and order.

DateP. EC 3 1 2025 Hon. ef-

Elizabeth A. Taylor, J.S.C.

1. CHECK ONE .. ... .... ........ .. ... .. .. .... ... .. ..... . X _CASE DISPOSED IN ITS ENTIRETY CASE STILL ACTIVE 2. MOTION IS .. .. ........ ..... .......... .... .. .. .... .. .. X GRANTED DENIED □ GRANTED IN PART □ OTHER 3. CHECK IF APPROPRIATE ................... .. .

□ SETTLE ORDER □ SUBMIT ORDER

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FILED: BRONX COUNTY CLERK 01/02/2026 03:47 PM INDEX NO. 27804/2020E NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 01/02/2026

SUPR EME COUR T OF THE STATE OF NEW YORK COUN TY OF BRON X : PART IA2 ----------------------------------------------------------------------X RAFA EL PERE Z,

DECIS ION and ORDE R

Plaint iff, Index No. 27804 /2020E

-against-

BRON X TL V EQUIT IES LLC,

Defen dant.

----------------------------------------------------------------------X Elizab eth A. Tay !or, J.

Defen dants move for summ ary judgm ent dismis sing the compl aint pursua nt to CPLR 3212.

Plaint iff oppos es the motion.

FACTS AND ARGU MENT

This is an action for person al injuries arising from a slip and fall accide nt which took place on

a slippery stairca se at 372 East 173rd Street on July 15 , 2018, due to an allegedly hazard ous

condit ion. Plaint iff claims Bronx TLV Equiti es LLC, the proper ty owner, was neglig ent for allowi ng a liquid substa nce to accum ulate on the stairs. Plaint iff testifie d that on the day of the accide nt, he left his apartm ent to celebr ate a friend 's birthda y of a friend at a park in the Bronx .

He took public transp ortatio n, anivin g at about 10:00 AM, and stayed until around 9 or IO PM.

After he left the party, he carried the cake back to an apartm ent occupi ed by Sandra Vasquez, the grandm other of the person having the party.

Plaint iff testifie d that he was carryin g the cake while ascend ing the stairs in the subjec t multip le dwelli ng when he slippe d on a wet step. He had used the stairs freque ntly withou t incide nt prior to this occasi on. He could not identify the substa nce or its source.

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FILED: BRONX COUNTY CLERK 01/02/2026 03:47 PM INDEX NO. 27804/2020E NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 01/02/2026

Sandra Vasquez , the third floor tenant, confirmed that the stairs were clean when she left for

the picnic earlier that day, nor did she see any liquid. On February 9, 2023, an investigator took an

audio recording of an interview over the phone with Ms. Vasquez. In that audio statemen t, Ms.

Vasquez confirmed that she and her son had left for an outdoor picnic ( which was a birthday party

that was being held for her grandson) at approximately 2:00 PM, and the stairs were clean at that

time, and in good condition. The plaintiff s accident took place as they were returning from the

party. The incident occurred on the steps leading from the second floor to the witness's apartme nt.

In the recorded statement, Ms. Vasquez stated that the plaintiff, while carrying the birthday cake,

slipped backwards onto the floor. There was a liquid substance on the step near the second floor.

Ms. Vasquez stated that she did not see the liquid substance when they left to go to the party earlier

that day, and she has no idea of how the liquid substance got there.

The defendant argues that it did not breach any duty of care, as it was unaware of the liquid on

the stairs and had no reasonable opportunity to address it. At no time did plaintiff even identify

what the liquid or substance was on the steps. Neither could the tenant Sandra Vasquez, who lived

on the third floor of the Premises, identify what the liquid substance was or where it came from,

as she stated in the audio recording. Given that they could not even identify its contents or source,

it is disingenuous to claim that the out-of-possession property owner defendant in any way caused

the substance to be on the steps. Neither is there any evidence, defendant argues, that anyone from

the defendant had any notice- actual or constructive-- of the liquid substance allegedly on the step.

In opposition to the motion, the plaintiff submits for the first time affirmations from Sandra

Vasquez and her son Jhony Alvarez . Each attests that they resided at the premises on the day of

the accident; that the water on the steps came from a leaking skylight over the stairwell;

and that

they had complained of the leak to the defendant owner. Plaintiff also submits weather data

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FILED: BRONX COUNTY CLERK 01/02/2026 03:47 PM INDEX NO. 27804/2020E NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 01/02/2026

indicating that approximately 1 inch of rain had fallen throughout the morning of July 15, 2018.

In reply, defendant argues that these belated affirmations directly contradict earlier statements

made in this case. Ms. Vasquez' new claim that the substance on the steps was water caused by a

leak from the skylight directly contradicts those statements she admittedly made to the investigator

in 2023. Vasquez expressly stated in her prior statement that she had no idea how the

liquid substance got there on the step.

Similarly, the affidavit of Mr. Alvarez also directly contradicts a prior written statement he had

made, also to the same investigator in September 2018 . The investigator visited the premises and

obtained a signed written statement from Mr. Alvarez that day, in which Alvarez stated that he

plaintiff fall , and that. "I believe he fell because of some greasy substance on the steps. I saw the

substance ... I don't know where the grease came from . .. "

DISCUSSI ON

A landowner is under a duty to maintain its property in a reasonably safe condition under

the existing circumstances, including the likelihood of injury to third parties, the potential that any

such injury would be of a serious nature and the burden of avoiding the risk. In order to recover

damages, a party must establish that the owner created or had actual or constructive notice of the

hazardous condition which precipitated the injury. (Piacquadio v Recine Realty Corp., 84 NY2d

967, 969, 646 NE2d 795, 622 NYS2d 493 [1994].) "To constitute constructive notice, a defect

must be visible and apparent and it must exist for a sufficient length of time prior to the accident

to permit defendant's employees to discover and remedy it." (Gordon v. American Museum of

Natural History, 67 N.Y.2d 836, 837, 492 N .E.2d 774, 501 N.Y.S.2d 646 [1986]).

"A defendant who moves for summary judgment in a slip-and-fall action has the initial

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burden of making a prima facie demonstration that it neither create d the hazardous condition, nor had actual or constructive notice of its existence" (Smith v Costc o Wholesale Corp. , 50 AD3d 499, 500, 856 N.Y.S.2d 573 [1st Dept 2008]). "To meet its burden on the issue of lack of constructive notice , the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall. " (Mei Xiao Guo v. Quon g Big Realty Corp. , 81 A.D.3d 610, 611 , 916 N.Y.S.2d 155 [2d Dept. 2011] [citations omitted] ;

Quintana v. TCR, Tennis Club of Riverdale, Inc. , 118 A.D.3d 455, 987 N.Y.S.2d 68 [1st Dept. 2014]

[defendant failed to establish a lack of constructive notice of the wet condition on steps where the moving papers contained no indication of when the area was last inspected prior to the accide nt] ; Qevani v 1957 Bronxdale Corp. , 232 AD2d 284, 649 NYS2 d 11 [1st Dept. 1996] [issue of fact as to whether existence of condition on steps for 90 minutes constituted constructive notice ].)

Defendant has made a prima facie case of the absence of notice . In opposition, plaintiff now asserts that the liquid was water and that it came from a leakin g skylight. "Affidavit testimony that is obviously prepared in support of ongoing litigation that directly contradicts deposition testimony previously given by the same witness, without any explanation accounting for the disparity, creates only a feigned issue of fact, and is insufficient to defeat a properly supported motion for summary judgment" (see Telfeyan v City of NY, 40 AD3d 372, 373, 836 N.Y.S.2d 71 [1st Dept 2007] [internal quotation marks omitted]). "On a motio n for summary judgm ent the court must not weigh the credibility of witnesses unless it clearly appea rs that the issues are feigned and not genuine ... " (6243 Jericho Realty Corp. v AutoZone, Inc. , 27 AD3d 447, 449, 813 NYS2d 95 [2d Dept. 2006] [emphasis added].)

Here, the witnesses have clearly submitted feigned affidavits which flatly contradict earlier statements, and which are patently feigned to avoid summary judgment.

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FILED: BRONX COUNTY CLERK 01/02/2026 03:47 PM INDEX NO. 27804/2020E NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 01/02/2026

Based upon the foregoing, it is hereby

ORDERED that the defendant's motion is granted, and the Clerk is directed to enter

judgment dismissing the complaint, and it is further

ORDERED that the defendant shall serve a copy of this Order via mail and NSCEF with

Notice of Entry thereon.

Dated: DEC 3 1 2025 ENTER: £'

Hon. Elizabeth A. Taylor, J.S.C .

.

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