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Morabito v. 11 Park Place LLC

Supreme Court of New York, First Department

June 11, 2013

Lorraine M. Morabito, Plaintiff-Respondent,
v.
11 Park Place LLC, et al., Defendants-Appellants.

The Law Office of Edward M. Eustace, White Plains (Rose M. Cotter of counsel), for appellants.

Alexander J. Wulwick, New York, for respondent.

Mazzarelli, J.P., Sweeny, Moskowitz, Manzanet-Daniels, Gische, JJ.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered September 27, 2012, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In this action for personal injuries allegedly sustained by plaintiff when she slipped on water in defendants' lobby, defendants demonstrated prima facie entitlement to judgment as a matter of law by establishing that they did not have constructive notice of the water on the floor. In support of their motion, defendants submitted plaintiff's testimony that it started raining five to ten minutes before she arrived at the building and that she did not see any water on the floor before she slipped. In addition, they submitted the testimony of a building employee who stated that it started to rain moments before plaintiff fell and that as soon as he observed the rain, he requested that mats be placed on the lobby floor just moments prior to plaintiff's fall (Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837 [1986]; see Garcia v Delgado Travel Agency, 4 A.D.3d 204 [1st Dept 2004]). Defendants additional submission of an unaffirmed report from a weather reporting company, not accompanied by any certified weather records or admissible climatological reports, cannot be considered (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]).

In opposition, plaintiff raised a question of fact by submitting an affidavit from a nonparty witness stating that when she arrived at the building approximately 30 minutes before plaintiff's accident, "it was raining and the lobby floor was uncovered and slippery" (see Jones v New York City Hous. Auth., 293 A.D.2d 371 [1st Dept 2002]; Spitzer v 2166 Bronx Park E. Corps., 284 A.D.2d 177 [1st Dept 2001]). In light of the conflicting evidence, there is an issue of fact as to the reasonableness of the steps taken by defendants to address the alleged slippery condition prior to plaintiff's accident (see Dabbagh v Newmark Knight Frank Global Mgt. Servs., LLC, 99 A.D.3d 448, 449 [1st Dept 2012]).


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