Guerrero v Van Sinderen Plaza Housing Development Fund Corporation
Attorneys and Parties
Brief Summary
Construction-site premises liability involving a slip-and-fall in a covered pedestrian walkway at an active construction project.
The Supreme Court, Kings County, granted summary judgment to the owner/developer-related defendants and to the construction manager, holding that the complaint should be dismissed against them.
The Appellate Division reversed the order insofar as appealed from and denied the branches of the motion and cross-motion seeking summary judgment dismissing the complaint against the Van Sinderen/MacQuesten defendants and LRC Construction, LLC (LRC).
The moving defendants failed to make a prima facie showing that they neither created the wet condition nor had constructive notice of it. The record left triable issues of fact as to whether the condition was created by use of a hose in the walkway and whether defendants had notice of a recurring accumulation of water in that area, including after rain, where workers were routinely assigned to inspect and dry the walkway.
Background
The plaintiff alleged that on July 24, 2020, at about 8:30 a.m., she slipped and fell on water in a covered pedestrian walkway at a Brooklyn construction project. She claimed the premises were owned, operated, and/or controlled by multiple Van Sinderen and MacQuesten-related entities, and that LRC served as construction manager. The defendants argued that they did not create the condition, lacked actual or constructive notice, and that any water accumulation resulted only from intermittent rainfall.
Lower Court Decision
The Supreme Court, Kings County, granted those branches of the Van Sinderen/MacQuesten defendants' motion and LRC's cross-motion that sought summary judgment dismissing the complaint as against each of them.
Appellate Division Reversal
The Appellate Division reversed insofar as appealed from, awarded one bill of costs to the plaintiff against the separately appearing respondents, and denied summary judgment to the Van Sinderen/MacQuesten defendants and LRC. The court held that the evidence, including the plaintiff's deposition testimony, did not eliminate factual issues as to whether defendants created the dangerous condition through use of a hose near the accident site. The court also found that defendants failed to establish lack of constructive notice or lack of notice of a recurring condition, since the record showed awareness that water accumulated in the walkway under certain conditions, including rain, and that workers were assigned each morning to inspect the area and use blowers to remove 'puddles and dampness' and other slip hazards. The court referenced New York City Building Code (Administrative Code of City of New York, title 28, chapter 7) § BC 3303.4.1.1 [provision concerning safe maintenance of pedestrian walkways at construction sites].
Legal Significance
This decision reinforces that defendants moving for summary judgment in a slip-and-fall case bear the initial burden of conclusively showing they did not create the hazard and lacked actual or constructive notice. Evidence of routine morning cleanup, known water accumulation in the same area, and possible creation of the condition by construction activity can defeat summary judgment. It also confirms that knowledge of an ongoing and recurring dangerous condition may amount to constructive notice of the specific recurrence that caused the accident.
Where a construction-site walkway is known to collect water and workers are regularly assigned to inspect and dry it, owners and a construction manager may not obtain summary judgment merely by blaming rain; they must also eliminate factual issues as to whether they created the hazard and whether they had notice of a recurring slippery condition.