Plaintiff Maria Naulo (Naulo), a public school student, sues the New York City Board of Education (the Board) for damages sustained when she allegedly slipped and fell on stairs at school.

The Board moves for summary judgment dismissing the complaint arguing that the Board " did not have actual or constructive notice of the allegedly dangerous condition and that the plaintiff cannot establish that any such condition was a proximate cause of her accident."

At her deposition, plaintiff testified as follows:

Q.Do you know what caused you to slip on the stairs?

A.No. I did not find out.

Q.Did anyone that you were walking with that day tell you

that there was something on the stairs that caused you

or may caused you to slip?

A.I was not told by anyone

******************** [*2]

Q.What caused you to fall?

A.The slipperiness of the stairs.

Q.Okay. Was the stair that you slipped on

more slippery than the others?

A.I can't remember exactly.

Q.How did your foot slip on the steps?

Did it twist out, twist in?

A.I'm not sure what exactly happened .

I just felt it like slip. I'm not sure what

direction exactly.

Q.Okay.

A.I'm assuming it was the rainwater because of the fact

that my hands were wet.

**************************

Q.Had you ever complained about the stairs before?

A.They weren't always- they were slippery.

That day I didn't complain before. No one

really complained to the administration.

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Two employees of the Board testified at deposition. Their testimony and documentary evidence established that the Board did not have knowledge of a wet condition on the stairs on the day of the accident.

The accident reports, filled out at the time of the accident and incorporated into plaintiffs' Notice of Claim states as follows:

"Maria slipped and fell on the stairs."

" I was going to room 404 when I just slipped and fell."

" I was walking down to my science class (404) and around

" 4 steps from the bottom I slipped and fell" [*3]

Plaintiff does not dispute the Board's contention that it had no actual notice of the condition that allegedly cause Naulo to slip and fall on the day of the accident. Plaintiff argues that the Board had constructive notice because a Board employee testified that on prior occasions he had advised the custodian that he found water on the stairs after a rain fall.

The Court of Appeals in (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]) enunciated the standard for establishing constructive notice as follows:

To constitute constructive notice, a defect must be

visible and apparent and it must exist for a sufficient

length of time prior to the accident to permit defendant's

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employee to discovery and remedy it. (Citations omitted)

The record contains no evidence that anyone,

including plaintiff, observed the piece of white paper

prior to the accident.

As in Gordon, the record here contains no evidence that anyone, including plaintiff, observed a wet condition on the stairs.

Moreover, contrary to plaintiff's contention, general awareness that rain may accumulate on the stairs is not legally sufficient to charge the Board with constructive notice. ( Bogart v Woolworth Co., 24 NY2d 936 [1969]).

Plaintiff argues alternatively that no notice was required as the City caused and created the alleged slippery condition on the steps. Plaintiff relies on the "Engineer's Affidavit" of Herbert W. Braustein which opines as follows:

As a result of being painted every summer for many years,

the diamond plate treads, which served to prevent skidding,

became smooth and slippery. This condition represents an

extreme slip hazard; especially, when wet. However, even

without rain as a factor, these steps pose an inherent slipping

hazard depending on a person's footgear, humidity and other factors.

This Engineer's report in insufficient to raise triable issues of fact as to whether the City caused and created a hazardous condition for a number of reasons.

First, Mr. Braunstein was not qualified as an expert. No vitae was submitted and his affidavit is devoid of any statement of his qualifications. Secondly, plaintiff's engineer did not [*4]indicate his area of specialization, nor did he identify any professional or industry standard to substantiate his assertions. (Jones v City of New York, 32 AD3d 706 [1st Dept 2006], Amatulli v Delhi Constr., Corp., 77 NY2d 525 [1991]).

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Finally, even if he has been qualified as an expert, his inspection took place over six (6) years

after the accident. There is no statement made in his affidavit that the condition of the stairs he observed were in a similar or the same condition as at the time of the accident. (Mroz v Ella Corporation, d/b/a/ Days Inn, 262 AD2d 465 [2d Dept 1999]).

The Board has met its burden on this motion for summary judgment and established lack of notice. Where, as here, plaintiff is unable to establish notice, either actual or constructive and where, as here, the record is devoid of any evidence that the Board created the condition, summary judgment dismissing the complaint is granted.

Accordingly, the Clerk of the Court is directed to dismiss the complaint with prejudice.

The foregoing constitutes the decision and order of the Court.

_______________________

Robert J. Miller

J.S.C.

August 4, 2008

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