Transit Employees Statement That He Cleaned Stairway on Morning of Accident Defeats Plaintiff's Injury Suit.

AuthorRogak, Lawrence
Position[COURTSIDE]

Williams v New York City Tr. Auth.

Edited by Lawrence N. Rogak

Plaintiff alleged that he slipped on a greasy substance on the stairs of a subway entrance. Three years into the suit, the Transit Authority moved for summary judgment and included an affidavit from an employee who cleaned those stairs every morning. Plaintiff argued that he needed more discovery to get evidence. Civil Court denied the TA's motion, but the Appellate Term reversed, holding that the plaintiff had 3 years to demand whatever evidence he needed but neglected to do so. The TA on the other hand met its burden of proving lack of notice, and the suit was dismissed.--LNR

* Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered December 23, 2015. The order denied defendant's motion for summary judgment dismissing the complaint. ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted.

The complaint in this personal injury action alleges that, at approximately 11:45 a.m. on June 13, 2011, as plaintiff was descending a staircase at the DeKalb Avenue subway station, in Brooklyn, New York, he slipped on an "oily, sticky and greasy substance and debris" that had accumulated on the third or fourth step of the staircase. Defendant moved for summary judgment dismissing the complaint. By order entered December 23, 2015, the Civil Court denied the motion, finding that defendant had failed to establish a lack of actual or constructive notice as a matter of law.

At the outset, we reject plaintiff's argument that defendant's motion should be denied as premature on the ground that discovery was not yet complete (see CPLR 3212 [f]), and that plaintiff should be allowed to depose defendant>s employee and obtain certain documents. " 'A party who claims ignorance of critical facts to defeat a motion for summary judgment (see, CPLR 3212 [f]) must first demonstrate that the ignorance is unavoidable and that reasonable attempts were made to discover the facts which would give rise to a triable issue' " (Sasson v Setina Mfg. Co., Inc., 26 AD3d 487, 488 [2006], quoting Cruz v Otis El. Co., 238 AD2d 540 [1997]; see also Douglas Manor Assn. v Alimaras, 215 AD2d 522 [1995]; Stevens v Hilmy, 185 AD2d 840 [1992]). Plaintiff did not schedule the deposition or obtain the documents in question in the three years that the action had been pending before defendant made the summary...

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