Verdejo v. New York City Housing Authority

Appellate Division of the Supreme Court of New York

Verdejo v. New York City Housing Authority

105 A.D.3d 450, 963 N.Y.S.2d 78

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

DecidedApril 4, 2013

StatusPublished

This text of 105 A.D.3d 450 (Verdejo v. New York City Housing Authority) 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

Verdejo v. New York City Housing Authority, 105 A.D.3d 450, 963 N.Y.S.2d 78 (N.Y. Ct. App. 2013).

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Opinion

Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered on or about August 6, 2012, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Plaintiff alleges that she was injured when she slipped and fell on a wet foliage condition located on defendant’s grounds. Defendant made a prima facie showing of entitlement to summary judgment as to this open and obvious condition, which was not inherently dangerous {see Misir v Beach Haven Apt. No. 1, Inc., 32 AD3d 1002 [2d Dept 2006]; see also McGuire v 3901 Independence Owners, Inc., 74 AD3d 434 [1st Dept 2010]). Defendant’s meteorologist stated that the wind was sufficient to create the foliage condition and that light rain, two hours earlier, accounted for the wetness of the leaves. Moreover, the supervisor of grounds at the subject development stated that the grounds crew took reasonable efforts to remove fallen foliage from the development’s extensive property, by patrolling the [451]*451grounds daily. Under the circumstances, defendant established that it met its duty to maintain its property in a reasonably safe condition (see Basso v Miller, 40 NY2d 233, 241 [1976]), and that it lacked prior notice of any dangerous condition (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Busterna v Branch Off. Assoc., 253 AD2d 837 [2d Dept 1998]).

Plaintiffs opposition fails to raise a triable issue of fact. Plaintiffs theory of liability, raised for the first time in opposition to the motion, that the slippery condition was caused by insufficient drainage for the sprinkler system, is precluded since it was not set forth in the notice of claim (see Chieffet v New York City Tr. Auth., 10 AD3d 526, 527 [1st Dept 2004]). In any event, the opinion of plaintiffs expert that the drainage was inadequate is speculative and insufficient to defeat the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Concur—Tom, J.P, Andrias, Saxe, Abdus-Salaam and Gische, JJ.

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Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered on or about August 6, 2012, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Plaintiff alleges that she was injured when she slipped and fell on a wet foliage condition located on defendant’s grounds. Defendant made a prima facie showing of entitlement to summary judgment as to this open and obvious condition, which was not inherently dangerous {see Misir v Beach Haven Apt. No. 1, Inc., 32 AD3d 1002 [2d Dept 2006]; see also McGuire v 3901 Independence Owners, Inc., 74 AD3d 434 [1st Dept 2010]). Defendant’s meteorologist stated that the wind was sufficient to create the foliage condition and that light rain, two hours earlier, accounted for the wetness of the leaves. Moreover, the supervisor of grounds at the subject development stated that the grounds crew took reasonable efforts to remove fallen foliage from the development’s extensive property, by patrolling the [451]*451grounds daily. Under the circumstances, defendant established that it met its duty to maintain its property in a reasonably safe condition (see Basso v Miller, 40 NY2d 233, 241 [1976]), and that it lacked prior notice of any dangerous condition (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Busterna v Branch Off. Assoc., 253 AD2d 837 [2d Dept 1998]).

Plaintiffs opposition fails to raise a triable issue of fact. Plaintiffs theory of liability, raised for the first time in opposition to the motion, that the slippery condition was caused by insufficient drainage for the sprinkler system, is precluded since it was not set forth in the notice of claim (see Chieffet v New York City Tr. Auth., 10 AD3d 526, 527 [1st Dept 2004]). In any event, the opinion of plaintiffs expert that the drainage was inadequate is speculative and insufficient to defeat the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Concur—Tom, J.P, Andrias, Saxe, Abdus-Salaam and Gische, JJ.

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105 A.D.3d 450, 963 N.Y.S.2d 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/verdejo-v-new-york-city-housing-authority-nyappdiv-2013.

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