This motion by defendant 3901 Independence Owners, Inc., ("building owner") and Goodman Management Co., Inc., ("Goodman") for summary judgment dismissing the plaintiff's complaint and all cross-claims against them and for summary judgment on the movants' cross-claims against defendant Skyline Restoration, Inc. ("Skyline") is granted to the extent that the complaint is dismissed against the building owner and Goodman. Cross-motion by Skyline for summary judgment dismissing the complaint against it is also granted. Summary judgment [*2]dismissing the complaint against defendant Metro Management and Development, Inc., ("Metro") is granted sua sponte.

On November 29, 2005 around 11:00 p.m., plaintiff injured his knee when he allegedly slipped and fell on water and leaves while exiting his apartment building at 3901 Independence Avenue in the Bronx. Plaintiff sued the building owner; the current management company, Goodman; a previous management company, Metro; the maintenance contractor, Skyline, and Everest Scaffolding, Inc. ("Everest"), which latter company had erected a sidewalk bridge in front of the building. Everest was granted summary judgment by this court's decision dated January 7, 2008, based on the absence of any duty owed to the plaintiff. Discovery also disclosed that Goodman, rather than Metro, was managing the building at the time of plaintiff's accident. After discovery was completed, the building owner and Goodman made the instant motion for summary judgment dismissing the complaint and for indemnification from Skyline, arguing that plaintiff had not demonstrated actual or constructive notice of a dangerous condition, or even the existence of a dangerous condition, of which the defendants had notice and which caused the plaintiff's slip and fall. Skyline cross-moved for summary judgment dismissing the complaint against it for the same reason.

Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment. (Andre v Pomeroy, 35 NY2d 361 [1974]). A party opposing a motion for summary judgment must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact. (Friends of Animals v Associated Fur Manufacturers, 46 NY2d 1065 [1979]). "If it shall appear that any party other than the moving party is entitled to summary judgment, the court may grant such judgment without the necessity of a cross-motion" (Civil Practice Law and Rules § 3212[c]).

To establish a prima facie case of negligence in a premises liability case, a plaintiff must prove the defendant had actual or constructive notice of the dangerous or defective condition and sufficient time, within the exercise of reasonable care, to correct or warn about its existence (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). Actual notice can be established if it can be proved the defendant created the condition or defect (Lewis v Metropolitan Transp. Auth., 99AD2d 246 [1st Dept 1984] aff'd 64 NY2d 670).

In support of the motion, movants offered climatological records; the deposition testimony of plaintiff, Miguel Fuentes for the building owner and Anthony Tin Yam Chu for Skyline; the contract between the building owner and Skyline; and a photograph of the building's entrance. The climatological records for New York on the day of plaintiff's fall noted no rain at all until 9:00 p.m. when trace amounts of precipitation began to fall. Between 11:00 p.m. and midnight, there was a rainfall amounting to 0.67". The lowest temperature reached during the 24-hour time period ending at midnight on the date of plaintiff's slip and fall was 60 degrees Fahrenheit.

Plaintiff testified that there was heavy rain during the day in question, but that it was only "misty" or a "drizzle" when he left the building (Deposition of Sean McGuire, January 14, 2008 at 13-14). Plaintiff was wearing a t-shirt and shorts at the time and he estimated the temperature at 35 degrees Fahrenheit (id. at 31). The light was dim but he had no trouble seeing where he was going (id.). Under the sidewalk bridge, the brick pavement was wet. Plaintiff knew that to [*3]be so because "when this (the brick pavement) gets wet it gets discolored, it gets dark that's why I know it was wet" (id. at 69). The water "was not deep" and it was not "ponding" (id.) or a "puddle" (id. at 76). It was just "surface water" (id. at 69, 76). One could not "splash or anything" (id. at 76). The water was not coming off the sidewalk bridge "like a tap", but there was a "heavier concentration" of water on the pavement than one would "normally have seen" without the sidewalk bridge in place (id. at 78). In addition, "leaves were just spread out all over" (id. at 70). Nevertheless, plaintiff could not be sure whether he slipped on leaves or just the water (id. at 78).

Miguel Fuentes testified that he was the superintendent of the building at the time of plaintiff's accident (Deposition of Miguel Fuentes, January 14, 2008 at 8). A porter was responsible for keeping the building clean inside and outside (id. at 9). A landscaper removed leaves from in front of the building twice a week (id. at 11). Plaintiff called Fuentes about 10 minutes after the accident (id. at 28). He told Fuentes that he fell on wet floor going down some steps (id. at 29, 61). Plaintiff showed Fuentes where he fell (id. at 28). Fuentes did not remember seeing leaves (id. at 29). He just saw rain water on the floor (id. at 62). He did not see water coming down from the scaffolding onto the walkway (id. at 29-30). It was raining at the time, but not hard (id. at 30). Water was running into a drain on the floor (id. at 62-63). Fuentes never saw water running off the scaffold onto the bricks (id.). There were no complaints from anyone else in the building about water on the bricks during the time the scaffolding was up (id. at 63).

Anthony Tin Yam Chu was a administrative manager for Skyline at the time of plaintiff's fall (Deposition of Anthony Tin Yam Chu, January 18, 2008 at 9-10). There were no complaints about placement of the sidewalk bridge scaffolding or pooling of water from the scaffolding (id. at 42). Skyline was responsible for the installation, oversight, means and methods of construction and maintenance of the scaffolding and its lighting (id. at 43-44).

In opposition to the motion, plaintiff offered his own affidavit and the affidavit of Robert L. Schwartzberg and argued that, on the day of plaintiff's fall, it was cold and windy, had been raining heavily for hours and the entrance to the building was poorly lit and wet with an accumulation of wet leaves. Plaintiff stated in his affidavit dated July 31, 2008 that he accompanied Schwartzberg to inspect the area where he fell and the only difference between the conditions on the date of his fall and the date of the inspection were the time of day, the weather and the lack of leaves.

Mr. Schwartzberg examined the sidewalk bridge during a dry day on January 5, 2006. He identified what he referred to as "design defects" in the scaffolding which allowed water to come through the sidewalk bridge from above and he stated there was insufficient light at the entrance under the bridge. One light bulb was missing on the day of the visit and the socket held an adaptor instead. Schwartzberg poured water on the bricks and confirmed that water made them more slippery. Even after drying them with towels, they were still slippery. In his opinion, the scaffolding was installed in a "poor, shoddy and unworkmanlike manner" and "hazardous conditions were created" making personal injury "foreseeable and predictable". In his attached report, which he did not incorporate by reference into the affidavit, Schwartzberg opined that the failure to provide a "safe, usable and well-illuminated walkway", correct "obvious defects" or cordon off the area was the direct cause of plaintiff's fall. There was no reference to causation in [*4]the affidavit itself.

Movants have established their entitlement to summary judgment which plaintiff has not refuted with admissible evidence. There was no evidence defendants either created or had notice of a hazardous condition causing plaintiff's fall. The mere fact that outside walking surfaces can become wet during a rainfall does not provide actual or constructive notice of a hazardous condition for which the building owner or management can be held responsible (see Solazzo v NYCTA, 6 NY3d 734 [2005][general awareness that stairs and platforms became wet during inclement weather did not provide constructive notice of specific condition causing plaintiff's injury]). Even if the sidewalk bridge had been poorly constructed and allowed excess water to run onto the pavement below, movants offered evidence that only trace amounts of precipitation fell prior to plaintiff's fall and his deposition testimony confirmed there was only a "drizzle" at the time of his fall. He never saw water running from the sidewalk bridge onto the pavement and admitted there were no puddles or ponding on the pavement at the time he fell, nor could he say he fell because of leaves on the pavement. Movants also offered unchallenged evidence that leaves were regularly cleared from the entrance.

Plaintiff's expert did not raise an issue of fact for trial. He did not say he observed the area in question at the time of night plaintiff fell or during a rainfall or mention the temperature on the date of his visit in the month of January. He did not even suggest that the area would have been free of leaves and water had the sidewalk bridge not been present. Mr. Schwartzberg did not state that anything in the design of the bridge tended to increase an accumulation of leaves or water on the sidewalk as opposed to leaving the area with no protection whatsoever from the elements. His affidavit was vague and avoided addressing causation altogether.

The complaint and all cross-claims against the remaining defendants are, therefore, dismissed. Movants are directed to serve a copy of this order on the Clerk of Court who shall enter judgment dismissing the plaintiff's complaint in its entirety.

This constitutes the decision and order of the court.

Dated: February 27, 2009

Bronx, New York

_______________________________

Betty Owen Stinson, J.S.C..