Tejeda v. Six Ten Management Corp.

Order, Supreme Court, New York County (Harold B. Beeler, J.), entered on or about May 19, 2004, which, in an action for personal injuries sustained when plaintiff slipped and fell on an interior staircase in defendant’s apartment building, upon reargument, adhered to a prior order, same court and Justice, entered on or about October 30, 2003, granting defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Appeal from the October 30, 2003 order unanimously dismissed, without costs, as superseded by the appeal from the May 19, 2004 order.

Given defendant’s superintendent’s testimony that he never received any complaints about water in the stairwell, plaintiffs testimony that he slipped on rain water that had accumulated in the stairwell through open windows, and that he had previously observed puddles of water in the stairwell whenever it rained, fails to raise an issue of fact as to whether defendant had constructive notice of the slippery condition in the stairwell by reason of its recurring nature. Lacking from plaintiffs showing is evidence of the frequency of the problem, e.g., how many times plaintiff had visited the building on rainy days, or defendant’s actual awareness of the problem (cf. Uhlich v Canada Dry Bottling Co., 305 AD2d 107 [2003]). Plaintiffs unsworn witness statements purporting to corroborate that rainwater in the stairwell is a recurring problem cannot be considered absent an acceptable excuse for the failure to have the statements sworn (see Zuckerman v City of New York, 49 NY2d 557, 560, 562 [1980]). Concur — Tom, J.E, Mazzarelli, Marlow, Nardelli and Catterson, JJ.