Whitecotton v. BTG LLC

2025 NY Slip Op 34399(U)

• Court: New York Supreme Court, Kings County
• Decided: November 18, 2025
• Docket: Index No. 506722/2023
• Status: Unpublished

Opinion

Whitecotton v BTG LLC 2025 NY Slip Op 34399(U) November 18, 2025 Supreme Court, Kings County Docket Number: Index No. 506722/2023 Judge: Kerry J. Ward 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: KINGS COUNTY CLERK 11/18/2025 01:07 PM INDEX NO. 506722/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/18/2025

SlJPREME COURT OF THE STATE OFNEW YORK COUNTY OF KINGS .---, --------- ·----. --------- ·----------. --------..--------.---------X EMILY WHITECOTTON,. Index No, 506722/2023 Plaintiff~

'"against-

BTG LLC, AUTOMATIC INDUSTRIES INC,;21 WEST ·COLUMBIA STREET LLC and 19 WEST COLUMBIA STREET LLC.,

Defendants. -------· -------------· ---------------- .. ------------- .----.. ----· -··.x {''Moving Defendants 21 West Columb ia Street LLC and 19 West Columb a Street LLC's t to CPLR §3212 Defendants") motion for summar y judgem ent to dismiss Plaintif fs Compla int pursuan is DENIED. Backgr ound and Procedural Historv January 6, On March 3, 2023, Plaintif f commen cedthis acti011. for personal injuries sustained on rooi11 at 202 l, ,vhen she allegedly slipped and fell due to puddles ofwater present through out the Jami.dry On the date ofthe the premises 408 \Vest 13oth Street, New York, New Yotk (t11e··"subject premises"). g agent, to accident, Automatic Industries; Inc. had a contract v-.rith Manor Manage ment, the managin s (NYSCEF provide washing machine s and dryers ih the basement laundry room of the subject premise Doc: 25, Exhibit A). 111 a sworn depositi611 held oii. April 17, 2024, Plaintiff stated that she has lived at the subject On the date of the ptemise s in apartment 21 for about eleven yeats. (NYSCEF Doc. 39, Exhibit E, p. 9). f stated that there accident, Plaintiff alleges that she was in the laundry room doing her laundry. Plaintif puddles of what were puddles ofwater covel'ing approximately 80% of the floor, and she had to go around the Plaintiff exited appeare d to be water to put her clothing in the washing nrnchine (Id. at pp. 54-55). As and fell onto the laundry roorh, she took two to three steps into the basement corridor, when she slipped because the water her left knee (Id. at 58J. Plaintif f believed that she slipped on water,a nd that she slipped ,.vas tracked by people coming in and 011t of the laundry room (Id. a:t pp, 71, 111). Plaintif f did not knmv Further, Oh past where the water in the laui1dryroom came from on the date of the acciden f(Id. at p. 115). 1

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occasions, Plaintiff had previously seen a washing machineJeaki ng water out of the door, and another tiine; saw water on the floor of the laundry room (Id. at pp. 115-116). A deposition was conducted with Steve Gross, an employee oflvlanor Management (NYSCEF Doc. 40, Exhibit F). Gross testified that the building had a superintenden t whose duties included dealing ,vith general maintenance requests, building repairs and specifically, inaintenance of the laundry·rootn; no records ,;vere maintained by the superintenden t relating to maintenance calls {Id. at pp. 25, 33, 35-36, 63-64). Gross had no knowledge of Plaintiff's fall and did not perfrmn an investigation into saitie (Id at pp, 48; 43. 50). Adeposition was conducted witl,. Denise Savino, PresidenLofA utomatic Industries, Inc;, who confirmed that her company prnvided and maintai11ed laundry equipment for the subject premises (NYSCEF Doc. 41, Exhibit G). Ms. Savino testified that she was only pi-esent at the subject location prior to the installation of the equipment to pt'epare a proposal (ld. at p. 34). She testified generally that a team member wopld visit the subject premises once a month to collect the cash from the machii'1.es_ and check the equipment (Id at pg. 16). Law. Pursuant to CPLR 3212, "[a] motion [fat summary judgment] shall be granted if ... the cause of action .... [is] established sufficiently tbwarrantthe court asa matter oflaw in directingjudg ment in favor of any party.'; (CPLR 3212 [b]; Rodriguez R City of New York, 31 N.Y.3d 312 [2018].) The motion for summary judgment must also ''show that there is no defense to the cause of action." {Id.). The party moving for summary judgment must make aprimafacies howing that it is entitled to summary judgment by offering admissible evidence deti1onstrating the absence of any material issues of fact and it can.be .. . . ~ decided as a tnatter oflaw (CPLR § 3212 [bJ; see Jacobsen v New York City Health and HiJsps. Cc)1p., 22 N.Y.Jd 824 [2014}; Brill v City of New York; 2 N.Y.3d 648 [2004]). li1 deciding a summary judgment motion, the court does not make credibility determinatio11s or fitidings of fact. lts function is to identify issues of fact,11ot to decide them. ( Vega v; Rcstani Cons tr. C01p., 18 N.Y.3cl 499, 505 [2012]). Once a primafacie showing has been made, however, the burden shifts to the non-moving pat1y to prove that material issues of fact.exist thatmustbere solvedattrial (Zuckerman v. City ofNew York, 49N.Y.2d 557 [ 1980]). To find a clefend ant liable for a plaintiff's injuries, the plaintiff must present evide11ce showing the existe11ce ofa dangerous or defective condition and tlmt the defendant either created the condition or had actual or constructive notice of the condition and failed to·reinedy it within.a reasonable amount of time 2

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(Davis v. Sution, 136 A.D.3d 731, 732-733 [2d Dept. 20161). A defendant has constructive no_tice of a hazardous·coi1dition ona property when the conditiori isvisible, l'lppareilt, andha_sexisted for·a sufficient le11gth of time to afford the defendant a reasonable opportunity to discover and remedy it (Williams v. lslandTre~s Union Free Sch. _Dist., 177 ADJd 936 1 937 [2d Dept.2019]). To meet its -burden 1:1.s to constructive 1wtice,_ a .defe[).dant mu_si ofter evidence ~s to when the 4cc;ident site was last inspected before-the time.ofthe plaintiff's.acciden t (Ferrer v 120 Union Ave., LLC, 2()5 AD3d- 772 [2d. Dept., 2022]). Merely referring to general cleanh1g practices without e.v"idence regarding the specifrc inspection or deaning of the area in question is insufficient to establish ~ prima facie case.of lack ofco11stru:ctive notice(Gti/Jii1. v PMV RealtJ', LLC, 181 Ab.3d 912 [2cf ·bept., 2020]). Where a defendant fails to offer evidence as to ,vhentb.e area .in question was last cleaned or inspected ptior to the plaii1titrs -accident, it has. failed to meet its inittal burden ·of showing lack -of cons(ructive nqfice, an~l its 1notion must be denied. In such a cas~, it is immaterial whether the plaintiff has. raised a friable issue of fact (Ahmeta,j v ]1.,/ountainv1e;w Condominium, 171 AD3d (583 [2d Dept2Q 19]}.

Analysis·. In the present case, Plaintiff alleged in her Bill of Parti cufors ·that. D'efendants, including ip.ovants, "failed fo and/or·i1i~dequately inspected, maintained and/or repaired the laundry machines" (NYSCEF Doc. 38, Exhibit D, 16). Plaintiff te.stifie4 that. prior to her fall, she eriqountered puddles of water in the laundry room ai1d that it was tracked into the hallway.--o:f the building (NYSCEF Doc. 3 9, Exhibit E. at pp. l l 3-' 114}. On at least.on~ prior occa;don, Plaintiff persona.Uy observed, a wash1ng machine leaking:water that resulted fo.puddles·ofwater on the· tloor of the laundry room (Id. at pp. t 15-116). As such, for rrio.varits to s_i.1stain .theirprima.facie burden, they would be required to. tender evidence that would negate the allegation that they created the. hazardous condition by f*iling to maintain the lauqdry equipment and that Plai.iltiffwas injured because ofits failure to pei'form maintenance.of the laundry machines pursu~mt to its contractual oblig,1tion. In regard- to actual noti:ce; the witnesses produced \;>y Defendant~ testified on behalf· of other personnd 'in each of thefr areas. who might have had knowledge. Pr.esident ·savino testi'tied that a team .member would yi_!:lit 1nore freque:ntly if they wei-e contacted by the building or a tenmi.t relating to an isstle. (NYSCEF Doc. 41, Exhibit G at p. 11). She provided nq-testimony relating to whether thtse visits \Vere _conduc_ted~ no testimony .regarding what inspections would be per.formed on those m(;inthly visits, and 3.

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provided no records documenting that the inspection was performed or detai ls concerning what was inspected. Similarly, Defendant BTG produced Steve Gross, who was the property manager for the subject location. The property manager testified that he had no knowledge of the Plaintiffs fall and did not investigate the same (NYSCEF Doc. 40, Exhibit F). He further testified that the building superintendent did not maintain any records relating to its regular maintenance schedule or requests for specific repairs (Id). As to constructive notice Defendant Automatic fai led to establish when or if the washers and dryers were inspected or repaired prior to the alleged accident and thus fai led to sustain their initial burden on this point. The only witness who addressed this issue was Ms. Savino, who could only state what she wou ld have expected the service crew to have done, and not whether they did it. In that regard, Ms. Savino testi tied that she did not know the last time her staff serviced the subject location prior to January 6, 2021, the date of incident. (NYSCEF Doc. 41 , Exhibit G at pp. 46-4 7). Ms. Savino further testified to the general procedure which included a team member visiting the building once every thirty days to collect the cash from the machines and check on the machines (Id. at p. 16). She testified that a team member would visit more frequent ly if they were contacted by the building or a tenant relating to an issue (Id. at p. 17). She provided no testimony relating to whether these visits occun-ed, no testimony regarding what inspections would be performed on those monthly visits and provided no records documenting the inspection was performed or details concerning what would be inspected and how the inspections would be conducted. Accordingly, Defendant failed to present aprimafacie entitlement to summary judgment, as they have failed to submit affirmative proof that they did not create the hazardous condition and/or that they did not have actual or constructive notice of the dangerous condition. Therefore, the burden of coming forward with evidence to establish a triable issue of fact has not shifted to the Plaintiff (Winegrad v Netv York Univ. Med. Ctr., 64 NY2d 851 [19851). Thus, Defendants' motion for swnmary judgment and dismissal of Plaintiffs Complaint pursuant to CPLR §3212 is DENIED. This constitutes the decision and Order of the Court. ENTER:

HON. KERRY J. WARD, A.J.S.C .

4 Hon. Kerry J. Ward, AJ.S.C.

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