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Canturencia v. Lower East Side I Associates, LP

Supreme Court, New York County

April 3, 2013

Veronica Canturencia, Plaintiff,
v.
Lower East Side I Associates, LP, Defendant. Index No. 100180/11

Unpublished Opinion

DECISION AND ORDER

KENNEY, JOAN M., JUDGE.

Recitation, as required by CPLR 2219(a), of the papers considered in review of this motion to dismiss.

Papers Numbered
Notice of Motion, Affirmation, and Exhibits 1-12
Opposition Affirmation, and Exhibits 13-15
Reply Affirmation, Exhibits 16-17

In this personal injury action, defendant, Lower East side Associates, LP moves for an Order, pursuant to CPLR § 3212, dismissing the complaint.

Factual Background

On October 27, 2010, at approximately 10 a.m., plaintiff left her apartment located on the 5th floor of 610 East 11th St, New York, NY (the premises) to take her son to an appointment and as plaintiff descended down the staircase, she slipped and fell between the 2nd floor and the 1st floor, falling down the remaining stairs to the lobby below (the accident).

Plaintiff alleges that after the accident, her pants, the stairs, and the landing were wet. Plaintiff stated at her examination before trial (EBT) that she had last walked over the location of the accident the afternoon prior to the date of the accident. (Plaintiffs EBT, pg. 96, lines 11-22). Plaintiff also stated that when she looked up after the accident, the landing was "wet, like somebody cleaned up." (Plaintiffs EBT, pg. 85, lines 18-21; pg. 88, lines 20-22).

Mark Guzman (Guzman) was the superintendent of the premises owned, operated, and managed by defendant. Guzman stated at his EBT that at the time of the accident, the premises employed a porter who was responsible for mopping the premises. (Guzman EBT, pg. 14, lines 16-21; pg. 15, lines 4-7; pg. 28, lines 14-18). Guzman was the porter's immediate supervisor, and would inspect the premises once per week on average. (Guzman EBT, pg. 30, lines 10-24). Guzman further testified that the porter would be at the premises from 8 a.m. until 5 p.m. five days per week. (Guzman EBT, pg. 15, lines 16-18). Guzman did not recall whether or not the porter was at the premises on the date of the accident. (Guzman EBT, pg. 33, lines 5-9).

Arguments

Defendant contends that this action must be dismissed because defendant did not create and/or have notice of any alleged dangerous condition ...


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