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Court grants defendants’ motion for summary judgment in a slip and fall case – Geltzer v The Gardens 75th Street Owners Corp., 2007 NY Slip Op 33879(U) (N.Y. Sup. Ct. 11/30/2007)


In this premises liability slip and fall case, the court considers the issue as to whether or not the plaintiff presented sufficient evidence that the defendant had actual or constructive notice of a hazardous condition to survive the defendants’ motion for summary judgment dismissal.

In April 2004, plaintiff Geltzer was injured in a slip and fall accident in the apartment building in which she lived. Plaintiff entered the trash closet to throw away her garbage. She fell on a sticky, slippery substance that was on the floor. After she fell she noticed a bag of garbage on the floor that contained beer cans and a soap container. Plaintiff filed a lawsuit against the Gardens 75th Street Owners Corp, the owner of the building, as well as Argo Corporation, the company that manages the building. She asserted the defendants had actual or constructive notice of the hazardous condition in the garbage room. The defendants filed a motion for summary judgment dismissal of the case.

When plaintiff was asked about the procedure for disposing of garbage and whether garbage was regularly left on the floor of the garbage room, the plaintiff acknowledged that there was a sign on the door instructing that trash should not be left in the garbage room and that garbage should be pushed down the garbage chute. She also acknowledged that sometimes trash of various types including recyclables, hazardous materials, breakables, and cardboard boxes was sometimes left on the floor. The plaintiff admitted that she never complained about garbage being left in the trash room and that she never noticed the floor being slippery or sticky prior to her accident.

In support of their motion for summary judgment dismissal, the defendants testified that they inspected the trash closets three times each day. Part of the inspection included making sure that all garbage was pushed down the chute, removing garbage left on the floor, and sweeping and mopping. Defendants testified that they did not receive any complaints from the plaintiff or any other tenants about garbage being left on the floor of the trash closet. Furthermore, the defendants testified that the trash room was sealed on the day before the accident for extermination, and that the seal was removed about 30-60 minutes before the plaintiff’s accident. At that time the defendant testified that the floor was dry.

The plaintiff contends that the defendant did indeed have both actual and constructive notice of the dangerous condition which caused plaintiff to fall. As evidence she alleged that there have been many occasions in which there was garbage left it the room and that the floor was wet. However, she failed to present any evidence that the defendants either created the hazardous condition or had actual or constructive notice that there was a sticky or slippery substance on the trash room floor. In other words, the plaintiff argued that the defendant had general awareness that on occasion garbage was left on the floor and that such garbage sometimes resulted in the floor becoming sticky, slick, or wet.

The court held that in a premises liability case, the plaintiff had the burden of showing that the defendant had constructive notice of dangerous condition on defendant’s premises. The plaintiff may meet such burden with evidence that a recurring condition existed and was routinely left unaddressed by defendant. However, the burden is not met by merely asserting that the defendant had a general awareness.
In support of her claim that the defendant had constructive notice of the hazardous condition because garbage was frequently left in the trash room, the plaintiff submitted affidavits of family members that actually contradicted both her own testimony and the testimony of the defendants that no complaints were made to the defendants.

The court found that the defendants’ met their burden of a prima facie showing that they were entitled to judgment as a matter of law by submitting evidence which demonstrated that they neither created the allegedly dangerous condition, nor had actual or constructive notice of the same. On the other hand, the plaintiff failed to raise an issue of fact that would be sufficient to charge defendants with creating, or having actual or constructive notice of the hazardous condition that she claims caused her to fall and suffer an injury.
Thus, the court granted the defendants’ motion for summary judgment dismissal of the plaintiff’s complaint.

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