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Coleman v Fenton Assoc., LLC 2011 NY Slip Op 31897(U) July 7, 2011 Sup Ct, NY County Docket Number: 111442/09 Judge: Louis B. York Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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lNEDON711212011

I

SUPREME COURT OF THE STATE OF

YORK
-3

- NEW YORK

COUNTY

------.Index Number : 111442/2009 COLEMAN, LONNIE
vs

$1 .$.c

PART

INDEX NO.
MOTION DATE

FENTON ASSOCIATES
Sequence Number : 001
SUMMARY JUDGMENT
MOTION SEQ. NO.
MOTION CAL. NO.

The following papers, numbered 1 to

were read on this motion to/for
PAPER$ NI&l BERED

Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Anawering Affidavit@- Exhibits Replying Affidavits

Cross-Motion:

0 Yes

0 No

Upon the foregoing papers, it la ordered that thla motion

FILED
JUL` 12 20tl
NEW YORK COUNTY CLERKS OFFICE

Dated:

0 FINAL DISPOSITION a Check if appropriate: 0 DO NOT POST
:heck one: SUBMIT ORDER/ JUDG.

NON-FINAL REFERENCE

[7 SETTLE ORDER/ JUDG.

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 2

LONNIE COLEMAN,
Plaintiff, Index No. 1 11442/09

FILED
LOUIS B. YORK, J.:

In this action for negligence, defendant Fenton Associates, LLC (` & d `F @ YW

NEW YORK OFFICE

moves for summary judgment against plaintiff Lonnie Coleman ("Coleman"). For the following reasons, the Court denies defendant's motion. Facts Defendant is the owner and manager of 3376 Fenton Avenue, a residential building in

Bronx County, New York. On August 21,2008, plaintiff wm an invitee on the premises, having
just visited building resident Josiah Spellman, when he slipped and fell in a hallway on the second floor, neat the landing of a stairwell. He alleges that as a result of his fall, he sustained injuries to his left shoulder that required surgery and extensive treatment. This resulted in the reduction of his ability to use his left arm. Plaintiff alleges that he slipped on a greasy spot on the floor that he identified by smell as insecticide. He also claims that, prior to visiting his friend in apartment #3F, as he was ascending the staircase, he saw a man whom he identified as the superintendent of the building spraying insecticide in the second floor hallway. Plaintiff claims that a hazard was created which was a direct result of defendant's actions, and as a result defendant was negligent and is liable for damages. In its motion for summary judgment, defendant alleges that there are no triable issues of
fact, and, therefore, it is entitled to dismissal as a matter of law. Defendant argues that as it

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neither created the hazard nor had actual or constructive notice of it, it may not be held liable for plaintiffs injuries. In support of this assertion, defendant offers the deposition testimony of Pedro Toraya, the building superintendent, in which Mr. Toraya states that he never performed exterminator duties in the public spaces of the building and did not spray the insecticide in question. The superintendent also states that he made regular inspections of the building, usually once in the morning and once in the evening, and that the hazard was not present at the time of his last inspection prior to the accident. He claims that the extermination company engaged by Fenton had not visited the building in August of 2008, and speculated that another tenant may have sprayed the insecticide. Defendant also submits receipts from the extermination company that services the building, showing that the company did not visit the building in August of 2008. Defendant claims that for these reasons, it did not cause the hazard and could not have been aware of the hazard prior to the accident. It asserts that since it has submitted evidence that it neither created nor had actual or constructive notice of the hazard, it is entitled to summary judgment . Plaintiff opposes the motion, claiming that defendant has failed to make a prima facie case for judgment as a matter of law, because the case presents triable issues of fact concerning the identity of the person who sprayed the insecticide, and therefore must be decided by jury. Analvsis Defendant claims that it cannot be held liable for damages, based on established criteria for negligence in slip and fall cases. In this situation, a plaintiff must demonstrate that the defendant either created the hazard or had actual or constructive knowledge of it. Gordon v. American Museum ofNatural History, 67 N.Y.2d 836,837,501 N.Y.S.2d 646,646 (1986); Snauffer v. 1177 Ave. of Americas LP, 78 A.D.3d 583,913 N.Y.S.2d 26 (1st Dept. 2010). If the moving party makes a prima facie case for summary judgment, to defeat the motion, the
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opposing party must present evidence that there is a triable material issue of fact. Zuckerman v. Citv of New York, 49 N.Y.2d 557,562,427 N.Y.S.2d 595,597 (1980). Defendant asserts that plaintiffs identification of the superintendent is hearsay because it was based on an unverified Statement by Josiah Spellman, the tenant that he visited on the night of the accident. It also claims that the testimony of its witness Pedro Toraya proves that defendant did not have notice

of the hazard. As a result, defendant has met its initial burden for summary judgment. However,
the Court must determine if plaintiff has presented a question of fact that will defeat defendant's motion. Defendant alleges that plaintiffs identification of the superintendent is hearsay, but this claim cannot be supported. On its own, the statement of an outside party who is not offering
sworn testimony should be excluded. N.Y. COMP. CODES R. & REGS. tit. 9, 5 517.8(b). In this

case however, Mr. Spellman's statement to Mr. Coleman identifying the superintendent falls within the present sense impression exception to the hearsay rule. Under this rule, `&a statement describing or explaining an event or condition made while the declarant was perceiving the event
or condition, or immediately thereafter" is admissible. N.Y. COMP.CODES & REGS. 9, $ R. tit.
5 17,S(c)(l). Mr. Spellman was standing next to plaintiff at the time of his statement, and w s a

directly pointing out the superintendent. Mr. Spellman and plaintiff both perceived the condition at the moment that the statement was made. This reduces the chance of intentional falsehood or memory loss. People v. Vasquez, 88 N.Y.2d 561, 574,647 N.Y.S.2d 697,703 (1996). As a

result, his statement is not hearsay, and may be admissible. In support of its position, defendant largely relies on the testimony of Pedro Toraya, the building superintendent, which conflicts with plaintiffs. Nonetheless, the Court must still consider Mr. Coleman's testimony as potentially genuine. In consideration of a motion for summary judgment by a defendant, all evidence must be viewed in a light most favorable to the
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plaintiff. Insurance Co. of New York v. Central Mut. Ins. Co., 47 A.D.3d 469,472, 850 N.Y.S.2d

56, 58-59 (1st Dept. 2008). The mere presentation of contradictory testimony by defendant's
agent is insufficient to discount plaintiff's testimony. Valerio v. Citv of New York, 23 A.D.3d

308,308, 804 N.Y.S.2d 312, 312 (1st Dept. 2005) (holding that speculative, contradictory
deposition testimony of defendant's officer/employee was insufficient to justify summary judgment). In addition, it is not the Court'sfunction on a motion for summary judgment to assess witness credibility. MJM Advertising, Inc, v. Panasonic Industrial Co., 2 A.D.3d 252,

252-53, 770 N.Y.S.2d 10, 12 (1st Dept. 2003). Plaintiff has presented evidence that a dangerous
hazard existed, and that the defendant's agent created it. This constitutes a triable issue of fact requiring a jury to evaluate the credibility of both witnesses. Maicher v. Federal Mach. Co.,

234 A.D.2d 921,921,65 1 N.Y.S.2d 795,796 (4th Dept. 1996). For a moving party to be granted
summary judgment, the determination of liability must be able to be made as a matter of law; if

there is a genuine issue of fact to be determined, the jury must make that determination. CPLR

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