Rafael Sanchez v. 1562 Thieriot Ave, LLC, et al.
Attorneys and Parties
Brief Summary
Premises liability in a residential setting—alleged slip-and-fall in a bathtub caused by chipped paint from prior reglazing/painting.
Denied defendants' motion for summary judgment, allowing the premises liability claim to proceed.
The denial of summary judgment; the Appellate Division reversed and dismissed the complaint.
Defendants showed they did not create the condition and lacked actual or constructive notice of chipped paint: a contractor reglazed the tub in 2018, the superintendent never painted the tub or received complaints thereafter, and plaintiff's deposition testimony ultimately confirmed no complaints after reglazing. Under Gordon v American Museum of Natural History and related authorities, no triable issue of notice existed.
Background
Plaintiff alleged he slipped and fell on paint chips while showering in his apartment bathtub. He claimed defendants' painting of the bathtub caused the paint to chip, creating a dangerous condition. Defendants submitted evidence that a nonparty contractor (American Standard) reglazed the tub in November 2018, more than two years before the March 2021 accident. The superintendent attested he never painted the tub and never received complaints from plaintiff about chipped paint. Plaintiff gave inconsistent deposition testimony about whether and when he complained, but ultimately testified he made no complaints after the 2018 reglazing.
Lower Court Decision
Supreme Court, Bronx County denied defendants' motion for summary judgment dismissing the complaint.
Appellate Division Reversal
The Appellate Division unanimously reversed, granted defendants' motion in its entirety, and directed entry of judgment dismissing the complaint. The court held defendants established they neither created nor had actual or constructive notice of the alleged hazardous condition, and plaintiff failed to raise a triable issue of fact.
Legal Significance
Reaffirms that in premises liability actions, a property owner is entitled to summary judgment where the record shows no creation of the condition and no actual or constructive notice, especially when a significant time has passed since third-party work and there is an absence of complaints or follow-up work orders. Inconsistent deposition testimony that resolves to no complaints does not create a triable issue of notice (see Gordon; Matos v Azure Holdings II, L.P.; Branham; Rivera; Smith v Costco Wholesale Corp.).
Without competent proof that a landlord created a hazardous condition or had actual or constructive notice of it, a slip-and-fall claim based on alleged bathtub paint chipping will be dismissed on summary judgment; inconsistent or equivocal testimony about complaints will not defeat dismissal.