Summary Judgment Properly Denied to Defendant in Slip/Fall Case; No Evidence That Janitorial Schedule Was Followed on Day of Incident

In Gautier v. 941 Intervale Realty LLC, 2013 NY Slip Op 05432, 108 AD3d 481 (July 23, 2013), a stairway slip-and-fall case, the court affirmed the denial of summary judgment to defendant.

Defendant moved for summary judgment on the ground that it neither created nor had actual or constructive notice of the hazard.  In support, it cited the deposition testimony of its superintendent about the building’s regular janitorial schedule.  This was insufficient, since “it offered no evidence that the schedule was followed on the date of the accident”.

Constructive notice also remained an issue, since defendant made no showing as to when the stairway was last inspected before the accident.

Proof that a janitorial schedule “merely existed does not suffice for purposes of showing that it was followed.” Also, “[s]tanding alone, proof that stairs were routinely cleaned on a daily basis is not germane to the dispositive issue of lack of notice of an alleged defective condition.”

The court distinguished the instant case from, e.g., Rodriguez v New York City Housing Authority (where the court “based a finding of a lack of constructive notice of a dangerous condition on the testimony of a caretaker who cleaned the building on the day before the early-morning accident” indicating “that a janitorial schedule not only existed but was followed at around the time of the accident”) and Pfeuffer v New York City Housing Authority (which involved a “caretakers’ logbook from the date of the accident” that did “not indicate that a hazardous condition existed in any stairwells within, at most, three hours before the accident”).

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