Betances v. 185-189 Audubon Realty, LLC

Betances v 185-189 Audubon Realty, LLC (2016 NY Slip Op 03421)

Betances v 185-189 Audubon Realty, LLC

2016 NY Slip Op 03421

Decided on May 3, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 3, 2016
Tom, J.P., Renwick, Richter, Kapnick, Webber, JJ.

1007 305916/12

[*1]Xiomara Betances, Plaintiff-Appellant,

v

185-189 Audubon Realty, LLC, Defendant-Respondent.

Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), for appellant.

Pillinger Miller Tarallo, LLP, Elmsford (Douglas A. Gingold of counsel), for respondent.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about December 1, 2014, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Summary judgment was properly granted in this action where plaintiff alleges that she was injured when, while descending the staircase in defendant's building, she slipped and fell on a plastic bag that was on the staircase. There is no testimony that defendant created the condition by depositing the plastic bag on the stairwell. On the issue of actual or constructive notice, where the hazardous condition is transitory, a defendant may establish its entitlement to summary judgment by demonstrating that the condition could have arisen shortly before the accident (see Rivera v 2160 Realty Co., L.L.C., 4 NY3d 837 [2005]; Brooks-Torrence v Twin Parks Southwest, 133 AD3d 536 [1st Dept 2015]). Here, plaintiff testified that she did not see the plastic bag or any other debris on the staircase when she arrived at defendant's building, only seeing the bag after she fell. Furthermore, to the extent plaintiff argues that dim lighting in the staircase caused or contributed to her accident, the motion court correctly concluded that plaintiff did not, in her testimony, expressly link her accident to the alleged lack of lighting in the stairs.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 3, 2016

CLERK