Perlongo v. Park City 3 & 4 Apartments, Inc.
818 N.Y.S.2d 158
N.Y. App. Div.
2006
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PHILLIP PERLONGO, Appellant, v PARK CITY 3 & 4 APARTMENTS, INC., et al., Respondents, et al., Defendant.

Supreme Court, Appellate Division, Second Department, New York

818 NYS2d 158

Phillip Perlongo, Appellant, v Park City 3 & 4 Apartments, Inc., et al., Respondents, et al., Defendant. [818 NYS2d 158]—

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Schulman, J.), dated May 23, 2005, which granted the motion of the defendants Park City 3 & 4 Apartments, Inc., Century Operating Corporation, and Charles Shohet for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with costs.

The plaintiff slipped on an accumulation of water on the floor of a vestibule in the basement of his apartment building. He commenced the instant action against, among others, the defendants Park City 3 & 4 Apartments, Inc., Century Operating Corporation, and Charles Shohet, the owners and managers of the building (hereinafter the defendants). The Supreme Court granted the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them. We affirm.

The imposition of liability in a slip-and-fall case requires evidence that the defendants created the dangerous condition which caused the accident, or that they had actual or constructive notice of that condition and failed to remedy it within a reasonable time (see

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, affd
).

A defendant has constructive notice of a dangerous condition when it is visible and apparent, and existed for a sufficient length of time before the accident such that it could have been discovered and corrected (see

;
;
).

Here, the defendants established their entitlement to judgment as a matter of law by submitting proof that the length of time for which the accumulation of water existed was unknown (see

;
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). The evidence submitted by the plaintiff in opposition failed to raise a triable issue of fact as to whether the accumulation of water existed for a period of time sufficient to impute constructive notice to the defendants (see
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). Contrary to the plaintiff‘s contention, the deposition testimony of the defendants’ employees established, at most, that the defendants had a general awareness that water might be tracked into the vestibule when it rained. Such a general awareness is insufficient to impute constructive notice of a particular dangerous condition to the defendants (see
;
;
).

Although “we have recognized that a ‘defendant who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of the condition’ ” (

, quoting
; see
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), the plaintiff‘s argument in this regard is not properly before this Court as it is being raised for the first time on appeal (see
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). In any event, the defendants were “not obligated to provide a constant remedy to the problem of water tracked into a building in rainy weather” (
; see
;
). Moreover, even if the defendants were aware that the accumulation of water on the floors of their building during a steady rain was a recurring condition, the evidence relied upon by the plaintiff to raise a triable issue of fact as to whether there was a known recurrence was not sufficiently time- or site-specific to support a claim of constructive notice (see
; see also
;
; cf.
).

Accordingly, the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them was properly granted.

Schmidt, J.P., Crane, Spolzino and Covello, JJ., concur.