Weisenthal v. Pickman

Balletta, J.,

dissents and votes to affirm the judgment appealed from, with the following memorandum: I respectfully disagree with the conclusion reached by my colleagues and vote to affirm the judgment. In my view, the plaintiff’s evidence was insufficient to raise a question of fact for the jury on the issue of the defendants’ constructive notice of the alleged substance that it is claimed caused her to fall. Accordingly, the trial court properly granted the defendants’ motion to dismiss the complaint at the close of plaintiff’s case (see, Sherman v Tamarack Lodge, 146 AD2d 767).

It is well established that in order to constitute constructive notice, a defect must be visible and apparent and it must exist *853for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy it (see, Gordon v American Museum of Natural History, 67 NY2d 836; Lewis v Metropolitan Transp. Auth., 64 NY2d 670).

The case of Gordon v American Museum of Natural History (supra) is clearly dispositive of this matter. The plaintiff in Gordon was descending the upper level of the entrance steps of the Museum when he slipped on the third step. He claimed that while in midair he saw a "piece of white, waxy paper next to his left foot” (Gordon v American Museum of Natural History, 67 NY2d 836, 837, supra). The Court of Appeals dismissed the complaint finding that the plaintiff had failed to establish "constructive notice of the particular condition that caused his fall” (Gordon v American Museum of Natural History, supra, at 838). The court noted that no one, including the plaintiff, had observed the paper prior to the accident, nor had the paper been described "as being dirty or worn, which would have provided some indication that it had been present for some period of time”. Therefore, the paper could have been on the steps for only minutes or seconds before the plaintiff’s fall.

Similarly, in the instant case, the plaintiff testified that as she was descending the upper level of the stairway in the office building where she worked, she fell when she reached the second step. While she was lying at the bottom of the stairs, the wife of the plaintiff’s brother-in-law removed a piece of sticky candy wrapper, approximately lVz by 2Vz inches from the plaintiff’s shoe. Neither the plaintiff, nor her brother-in-law and his wife, had seen the paper prior to the accident. Thus, as in Gordon, there was no evidence that the candy wrapper had been on the stairway for a sufficient length of time so as to charge the defendants with constructive notice of its existence (see, Anderson v Klein’s Foods, 73 NY2d 835; Torri v Big V, 147 AD2d 743; see also, Kritz v Manufacturers Hanover Trust Co., 33 AD2d 753). Indeed, there is no evidence in the record that the candy wrapper was even on the stairs (see, Felgenhauer v Atlantic & Pac. Tea Co., 94 AD2d 737).

The plaintiff’s strategy at trial in this case was to demonstrate that the defendants had constructive notice of the wrapper by the fact that the staircase was strewn with litter. However, as the Court of Appeals made clear in Gordon, such a "bootstrapping” argument must fail. "Contrary to plaintiff’s contentions, neither a general awareness that litter or some other dangerous condition may be present (see, Bogart v *854Woolworth Co., 24 NY2d 936, revg 31 AD2d 685) nor the fact that plaintiff observed other papers on another portion of the steps approximately 10 minutes before his fall is legally sufficient to charge defendant with constructive notice of the paper he fell on” (Gordon v American Museum of Natural History, supra, at 838).

The distinction the majority attempts to make between this case and the Gordon case is not persuasive. The stairway herein was the central stairway of a busy office building, leading from the entrance on Queens Boulevard to the second floor where some 20 to 25 offices were located. The building is open to the general public, and people go in and out of the building on business all the time. The plaintiff did not see the wrapper when she ascended the stairs at 9:00 a.m. or when she descended them at 1:00 p.m. when the accident happened. Thus, contrary to the majority’s view, it is not "pure speculation” to conclude that the wrapper had only been there for a few minutes.

Moreover, the cases of Gramm v State of New York (28 AD2d 787, affd 21 NY2d 1025) and Kelsey v Port Auth. (52 AD2d 801), relied upon by the majority, are distinguishable from the instant case. As explained by the Court of Appeals in Gordon v American Museum of Natural History (67 NY2d 836, 838, supra): "In both cases constructive notice was established by other evidence and the issue was whether plaintiffs had presented sufficient evidence on the issue of causation insofar as both plaintiffs failed to specify which step they had fallen on and what condition—wear, wetness or litter—had caused them to slip. In each case, the court concluded that plaintiff had presented a prima facie case because a fall was a natural and probable consequence of the conditions present on the stairs. The defect in plaintiff’s case here, however, is not an inability to prove the causation element of his fall but the lack of evidence establishing constructive notice of the particular condition that caused his fall”.

Given the fact that the plaintiff failed to demonstrate that the defendants had actual or constructive knowledge that the wrapper was in fact on one of the stairs, the trial court properly granted the defendants’ motion for judgment as a matter of law.