October 16, 2013
CANDICE BROWN, Plaintiff,
DAVID HOWSON and JESSICA HOWSON, Defendants. Index No. 104524/2011
DECISION AND ORDER
SHLOMO S. HAGLER, J.S.C.:
Defendants David Howson ("Howson") and Jessica Howson, (collectively, "defendants" or "landlords") move under motion sequence number 002, pursuant to CPLR § 3212, for an order granting them summary judgment dismissing the complaint or, in the alternative, striking and dismissing that portion of plaintiff s Supplemental Verified Bill of Particulars, dated November 2, 2012, which asserts negligence under the theory of res ipsa loquitur. Plaintiff Candice Brown ("Brown" or "plaintiff) opposes the motion alleging triable issues of fact.
This is an action for personal injuries allegedly sustained by the plaintiff when the ceiling in her apartment, located at 2117 Fifth Avenue, New York, New York, fell on her. On the morning of August 27, 2010, while plaintiff was eating her breakfast, she heard a loud sound, and then a portion of the ceiling fell upon her. (Examination Before Trial of Candice Brown, dated October 22, 2012, ["Brown EBT"], at p. 37.) Brown claims that the cracks had been there for years prior to the time she moved in to the apartment and that a painter had come in several years earlier to paint the apartment, including the living room ceiling, and he informed Howson of the cracks. (Brown EBT at p. 40.) Howson avers that no one ever reported any dangerous condition in the apartment to him prior to the incident. (Examination Before Trial of David Howson, dated October 22, 2012, ["Howson EBT"] at p. 41.)
Following the close of discovery, plaintiff produced two affidavits - one from Tanya Alfonso ("Alfonso") and one from Carlisle Bend ("Bend"), both dated December 12, 2012. Alfonso states in her affidavit that "[i]n or about 2002, 1 noticed cracks in the ceiling of the living room" of the apartment and "[sjhortly thereafter, I informed David Howson, the owner of the subject premises." Bend stated in his affidavit that "[i]n or about 2004, 1 noticed cracks in the living room in Apartment No. 6, when I went to discuss possible painting for TANYA ALFONSO." Bend further states in his affidavit that "[s]hortly thereafter, I informed David Howson, the owner of the subject premises."
The movant has the initial burden of proving entitlement to summary judgment. (Winegrad v. N.Y.U. Medical Ctr., 64 N.Y.2d 851 .) Once such proof has been offered, in order to defend the summary judgment motion, the opposing party must "show facts sufficient to require a trial of any issue of fact." (CPLR 3212[b]; Zuckerman v. City of New York, 49 N.Y.2d557 ; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065 ; Freedman v. Chemical Constr. Corp., 43 N.Y.2d 260 ; Spearmon v. Times Square Stores Corp., 96 A.D.2d 552 [2d Dept 1983].) "It is incumbent upon a [party] who opposes a notion for summary judgment to assemble, lay bare and reveal his proof, in order to show that the matters set up in his [complaint] are real and are capable of being established upon a trial." (Spearmon, 96 A.D.2d at 553, quoting Di Sabato v. Soffes, 9 A.D.2d 297, 301 [1st Dept 1959].) If the opposing party fails to submit evidentiary facts to controvert the facts set forth in the movant's papers, the movant's facts may be deemed admitted and summary judgment granted since no triable issue of facts exists. (See Kuehne & Nagel, Inc. v. F.W. Baiden, 36N.Y.2d539).
Disposition of this motion turns upon whether this Court may consider the affidavits of Bend and Alfonso because without them, there is no evidence that Howson had notice of the alleged defective condition.
A plaintiff must provide notice of its witnesses before the close of discovery. If notice witnesses were not disclosed before discovery was completed and the note of issue filed, the affidavits of such undisclosed witnesses cannot be considered by the court on a summary judgment motion. (See Dunson v. Riverbay Corp., 103 A.D.3d 578, 578-579 [1st Dept. 2013]; Ravagnan v. One Ninety Realty Co., 64 A.D.3d 481, 482 [1st Dept 2009]; Concetto v. Pedalino, 308 A.D.2d 470, 470-471 [2nd Dept 2003]; Robinson v. New York City Hous. Auth, 183 A.D.2d 434, 435 [1st Dept 1992].) In this case, the affidavits of Alfonso and Bend were only produced after discovery was closed, the note of issue was filed, and only in opposition to defendants' summary judgment motion and, therefore, may not be considered. Since the affidavits cannot be considered, plaintiff has failed to provide proof in an admissible form that the defendants had been given notice of the allegedly dangerous condition.
Assuming, arguendo, that the Alfonso and Bend affidavits were to be considered, these purported notices were legally insufficient. When giving notice of a defective condition, the landlord must be given detailed notice of the exact nature of the dangerous condition. (See Dunson v. Riverbay Corp., 103 A.D.3d at 579 [a report of "dangerous plaster falling from the ceiling" without specifying where in the apartment the condition was occurring was insufficient to put the landlord on notice]; cf. Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969 [NY 1994] and Gordon v. American Museum of Natural History, 67N.Y.2d 836, 838  ["general awareness" of defective or dangerous condition is legally insufficient to constitute notice of the particular condition that caused the injury].) Here, Alfonso and Bend alleged in their affidavits that they observed cracks in the ceiling of the living room of the apartment and notified Howson. Alfonso claims in her affidavit that she observed the cracks "in or about 2002" and that she informed Howson "shortly thereafter." Similarly, Bend alleges in his affidavit that he observed the cracks "in or about 2004" and informed Howson "shortly thereafter." The lack of details as to the specific dates in these affidavits precludes their consideration as legally sufficient notice.
Finally, there is a large unexplained gap in time between the alleged notices and the accident which took place in 2010. Specifically, Alfonso states that she gave notice in 2002, and Bend states that he gave notice in 2004. The six to eight year gap between the purported notices and the accident, with no explanation of what happened in the interim, is too attenuated to support plaintiffs contention that the defendants had legally sufficient notice of the particular condition that allegedly caused the accident.
Res Ipsa Loquitur
Defendants also moves to strike or dismiss that portion of plaintiff s Supplemental Verified Bill of Particulars, dated November 2, 2012, which asserts negligence under the theory of res ipsa loquitur. "To apply res ipsa loquitur, a plaintiff must establish that: "(1) the accident [is] of a kind that ordinarily does not occur in the absence of negligence; (2) the instrumentality or agency causing the accident [is] in the exclusive control of the defendants; and (3) the accident must not be due to any voluntary action or contribution by plaintiff (Smith v. Consolidated Edison Co. of N. Y., Inc., 104 A.D.3d 428, 429 [1st Dept 2013]). In the instant case, as the plaintiff and Alfonso were both in possession of the apartment as tenants, defendants were not in exclusive control of the apartment or its ceiling. Therefore, the doctrine of res ipsa loquitur is plainly not applicable in this situation.
Inasmuch as the Alfonso and Bend affidavits cannot be considered on this motion, plaintiff has failed to counter Howson's claim of lack of notice or raise a triable issue of fact in opposition to this summary judgment motion. As such, defendants' motion for summary judgment and to dismiss plaintiff claim of res ipsa loquitur must be granted.
Accordingly, it is hereby
ORDERED, that defendants' motion for summary judgment dismissing the complaint and against David Howson and Jessica Howson is granted. The clerk of the court is hereby directed to enter judgment dismissing the complaint.
The foregoing constitutes the decision and order of this Court.