Mitchell v. NYCHA

The following numbered papers were read on this motion: NYSCEF Document Numbers 106-116, 117-119. ORDER Upon the foregoing papers, having heard oral argument, and due deliberation having been had,¹ It is hereby ORDERED as follows: Defendant New York City Housing Authority’s (hereinafter “NYCHA”) motion to reargue is hereby DENIED. NYCHA moves to reargue this Court’s order dated and entered October 5, 2023. In said order, this Court denied NYCHA’s motion for summary judgment due to issues of material fact. Specifically, this Court determined there to be an issue of fact as to whether the subject area was properly inspected prior to Plaintiff’s slip-and-fall accident. “A motion for leave to reargue must be ‘based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion’ (CPLR 2221[d][2])” (Central Mtge. Co. v. McClelland, 119 AD3d 885 [2d Dept 2014]). Such a motion is addressed to the sound discretion of the motion court (see A.R. Conelly, Inc. v. New York City Charter High Sch. for Architecture, Eng’g & the Constr. Indus., 206 AD3d 787 [2d Dept 2022]). This Court finds that it did not overlook or misapprehend any matters of fact or law. This Court adheres to its previous determination which denied NYCHA’s motion for summary judgment as issues of material fact exist. Primarily, NYCHA argues that the Court misapprehended the case law regarding inspection of the subject property. NYCHA takes the position that a NYCHA employee noting that a walk-through of the subject premises the day prior to Plaintiff’s slip-and-fall accident is sufficient to establish that NYCHA did not have constructive notice of the defect leading to Plaintiff’s accident and subsequent injuries. NYCHA points to the deposition testimony of NYCHA’s witness to argue that NYCHA employees, as part of their inspection, typically enter and inspect each floor of the building before proceeding to and inspecting the roof of the building. NYCHA further points to an inspection schedule which notes that a NYCHA employee inspected the building twice the day before Plaintiff’s accident. NYCHA further argues that an engineer’s uncovering of a “ponding” issue on the roof does not give rise to a duty on NYCHA to inspect the property for leaks. NYCHA attempts to distinguish the case law cited by the Court, Milorava v. Lord & Taylor Holdings, LLC (133 AD3d 724 [2d Dept 2015]) and Gairy v. 3900 Harper Ave., LLC (146 AD3d 938 [2d Dept 2017]), by arguing that those cases dealt with the total absence of evidence of inspection of the subject location, while NYCHA here submitted evidence that a NYCHA employee walked through the building the prior day. However, NYCHA’s arguments are entirely unconvincing. The Second Department has repeatedly held in slip-and-fall accidents that failure to submit evidence of specific cleaning or inspection of the area in question and when said cleaning and inspection was performed relative to the time of the accident is fatal to any attempt to establish a lack of constructive notice (see Mehta v. Stop & Shop Supermarket Co., LLC, 129 AD3d 1037 [2d Dept 2015]; Herman v. Lifeplex, LLC, 106 AD3d 1050 [2d Dept 2013]; Mahoney v. AMC Entertainment, Inc., 103 AD3d 855 [2d Dept 2013]; Levine v. Amverserve Ass’n, Inc., 92 AD3d 728 [2d Dept 2012]; Goodyear v. Putnam/N. Westchester Bd. of Co-op. Educ. Services, 86 AD3d 551 [2d Dept 2011]; Tsekhanovskaya v. Starrett City, Inc., 90 AD3d 909 [2d Dept 2011]; Mei Xiao Guo v. Quong Big Realty Corp., 81 AD3d 610 [2d Dept 2011]; Birnbaum v. New York Racing Ass’n, Inc., 57 AD3d 598 [2d Dept 2008]; Joachim v. 1824 Church Ave., Inc., 12 AD3d 409 [2d Dept 2004]). Plaintiff alleges that Plaintiff slipped while utilizing the stairs in a NYCHA building due to a puddle in the stairwell. As noted above, NYCHA merely provides evidence that an employee purportedly walked through the building twice the day prior to the accident. Meanwhile, the deposition testimony provided by NYCHA only notes that the NYCHA employee typically inspects each floor of the building while making no reference as to whether such practices were conducted on the date of the subject incident. No evidence was provided as to whether said employee inspected or cleaned the specific area, nor whether any inspections were done on the day of Plaintiff’s purported accident. Accordingly, issues of material fact persist as to whether NYCHA had constructive notice of the defect on the premises. Thus, this Court has not misapplied or misapprehended any fact or law in its previous order and NYCHA’s motion to reargue is DENIED in its entirety. CPLR 5513 (a) provides: “Time to take appeal as of right. An appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof. Dated: February 2, 2024