A non-jury trial with respect to liability only was commenced on July 15, 2013, continued to July 22nd, and completed on August 12th, 2013.

This is an action for personal injuries allegedly sustained by plaintiff at or around midnight on December 3-4, 2009, inside the premises located at 81 Jersey Street, Staten Island, New York, known as Richmond Terrace Houses, a New York City Housing Authority (hereinafter referred to as NYCHA) property. According to plaintiff, the incident occurred just outside her fifth floor apartment, when she slipped and feel on the grease underlying food debris on the floor next to the garbage chute.

Based on the credible testimony and documentary evidence, the following Findings of Fact and Conclusions of Law are made by this Court.

On December 3rd plaintiff left her apartment three times: first, at approximately 1pm, to put out garbage at the chute/compactor. Ms. Traicoff testified that at this time she saw food items on the floor, located approximately three feet from the chute. Later that day, between 2 and 3 pm she went out to retrieve her mail. In the evening Jeanette Fessler, a friend of plaintiff for three or four years, came to her apartment for dinner. When she exited the elevator at approximately 6:30pm, she did not notice food debris on the floor. At or about midnight, as her guest got up to leave, plaintiff left her apartment for the third time to again take out the leftovers. Ms. Fessler followed to go home. Plaintiff approached the garbage chute, saw chicken bones, went around them and slipped on the unseen grease underlying the food debris which was on the floor in the same vicinity. Plaintiff testified that when she sat up she was covered in chicken fat. Ms. Fessler testified that plaintiff slipped and fell towards the right of the incinerator door. Ms Fessler also stated that when plaintiff started to fall the chicken bones were right near her feet. She observed bones and what appeared to be grease on the floor along with all kinds of food debris. Ms. Fessler never touched the debris on the ground and stated that the lighting was fluorescent, but dim.

Plaintiff testified that she had reported her observation of food debris around and about this same garbage chute the day before her accident occurred. Ms. Traicoff testified that on December 2, 2009 she went up the hill to the NYCHA housing office in person to make this report. Plaintiff testified, in substance, that she calls the complaint number quite frequently, but on this day she [*2]walked up to report in person because she wanted someone in authority to take care of things right away.^[FN1]

In opposition defendant The New York City Housing Authority ("NYCHA") maintains that there is no credible evidence that it created the condition which caused the accident or had actual or constructive notice of this condition. In support of this position defendant called Tonya Jacobs who is employed as a secretary at Richmond Terrace Houses. This witness is familiar with plaintiff in that she had called the complaint call center a number of times (more than 20 occasions) and some of those calls resulted in work orders.^[FN2] Ms. Jacobs testified that she never took a phone call from plaintiff on the date in question. More to the point Ms. Jacobs testified that plaintiff also did not come to the office to file a complaint on December 2, 2009; she would have remembered that. Ms. Jacobs testified that she believed plaintiff walked with the use of a cane in 2008 and 2009.^[FN3]

In addition, plaintiff also called William Martinez, Supervisor of Caretakers. He testified as to custom and practice of duties to be done every day as well as the physical description of the building and the schedule worked by the maintenance staff. Mr. Martinez stated that on the date of the accident Richmond Terrace Houses employed six caretakers for the 80 unit apartment building. The hallways were covered in vinyl floor tiles; elevators were located next to each other in the middle of the building. Approximately eleven feet separate the garbage chute from the elevator bank. Tenants also had access to stairs located at the opposite side of the wall from the elevators. Garbage chutes were located next to "B" stairs and the chute led to a compactor in the basement. The garbage chute in question is to the right of the elevator doors, on the opposite wall.^[FN4]

A deposition transcript was read into the record which revealed, in substantive part, that there were "jam ups" in the compactor approximately three times per week and the caretakers took time out to clear/clean up these malfunctions. Such work necessarily delayed the scheduled maintenance. The logbook of Mr. Martinez was admitted into evidence ^[FN5] which contained daily entries. On the date in question, Charles Hertzog was assigned to 81 Jersey Street. The log shows that the daily schedule was being maintained in that the caretaker came in at 8am, started with a safety check, walked through all hallways and stairways from top to bottom, did a sweep down of hallways and stairwell, checked the compactor and brought compacted trash to curb. Debris on lawn and sidewalk was then picked up. There is also a custom and practice for a caretaker to perform an afternoon sweep down of hallways and stairwells. This witness also recalls seeing Ms. Traicoff a couple of times a month [*3]in the office with complaints about building maintenance and confirms that there is often a problem with garbage being left in the vicinity of the chutes. While this maintenance regimen acknowledges that residents of the building acted in an irresponsible manner with respect to litter, it does not establish that NYCHA had notice of the particular condition that allegedly caused plaintiff to slip and fall (see Gloria v MGM Emerald Enterprises, supra; Grottano v City of New York, 304 AD2d 713).

Charles Hertzog, caretaker for NYCHA also testified. He confirmed that on December 2, 2009 he was assigned to 81 Jersey Street, that Mr. Martinez was his supervisor and that he swept the each floor every day when he was the caretaker. Mr. Hertzog also stated that he would empty the compactor first thing in the morning.

In conclusion, defendant avers that Ms. Traicoff did not give notice because she did not complain to the office on that date and also did not call the central number to give actual notice. There is no obligation to have someone on duty twenty-four hours a day and the daily sweeps would have led to the correction of a debris condition and thus, there would not be constructive notice of the garbage which caused Ms. Traicoff to slip and fall.

Plaintiff argues that there are no specific records to confirm that the fifth floor was swept or mopped prior to the accident and that there are inconsistences in defendants' testimony, and that plaintiff went in person to give the defendant actual notice, as she often did. In addition, plaintiff noticed a debris spill on the floor that noon, gave actual notice to NYCHA the day before the accident, used caution in trying to step around the food spill and given the dim lighting, plaintiff was not culpably negligent.

In addition, Plaintiff argues that the applicable law with respect to the notice requirement is that actual knowledge of a specific recurrent dangerous condition gives rise to a finding of notice of that dangerous condition (see Memorandum of Law, dated July 16, 2013, at page 2). Plaintiff also recounts that numerous complaints of dim lighting and debris were made to the management office and she does not dispute that management addressed the problems as they arose and were reported. However plaintiff argues, in substance, that a recurring dangerous condition is the equivalent of constructive notice.

Defendant has pleaded the following affirmative defenses: culpable conduct of Plaintiff, open and obvious condition , assumption of the risk and no constructive or actual notice of a slippery condition at the chute near Ms. Traicoff's apartment. With respect to open and obvious, it is relevant to note that the open and obvious nature of an allegedly dangerous condition is crucial to the issue of comparative fault of the plaintiff and does not preclude a finding of liability against defendant landowner (see MacDonald v City of Schenectady, 308 AD2d 125). Of note is that Plaintiff testified that she was aware of the food debris surrounding the compactor chute immediately prior to slipping on the grease and falling, but she took care to try and step around the accumulated food on the floor.

It is well settled that in order to establish a prima facie case of negligence in a slip and fall action, it must be shown that defendant created the condition which caused the accident or had actual or constructive notice of the condition (see Gloria v. MGM Emerald Enters., 298 AD2d 355 [2nd Dept. 2002]; Nearchou v. Broadway Mall Prop., 270 AD2d 468 [2nd Dept. 2000]; Pirillo v. Longwood Assocs., 179 AD2d 744, 745 [2nd Dept 1992]). "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 employees to discovery and remedy it" (Gordon v. American Museum of Natural [*4]History, 67 NY2d 836, 837).

These well accepted principles have been regularly applied in cases involving injuries allegedly sustained as a result of oil or other slippery foreign substances upon a floor, the existence of which, in and of itself, has been held insufficient to support a cause of action sounding in negligence absent proof of "circumstances sufficient to charge the defendant with responsibility therefor", e.g., where the defendant created the condition or had actual or constructive notice thereof and a reasonable time within which to correct the condition or warn of its existence (see Mercer v. City, 223 AD2d 688, 689-690 [2nd Dept 1996], affd 88 NY2d 955, quoting Lewis v. Metropolitan Transp. Auth., 99 AD2d 246, 250 [1st Dept. 1984], affd 64 NY2d 670, 671).

It is also well settled that a "general awareness" of a dangerous condition caused by the presence of grease or oil on a garage floor is legally insufficient to constitute actual or constructive notice of the particular slippery condition which is alleged to have caused a plaintiff to fall (see Mercer v. City, 223 AD2d at 691 citing Piacquadio v. Recine Realty Corp. 84 NY2d 967).

In the instant matter, although plaintiff argues that NYCHA should be charged with actual notice of the particular slippery condition which allegedly caused plaintiff to fall, plaintiff has failed to demonstrate that actual notice was given to the office staff of NYCHA. In this regard, plaintiff's trial testimony contradicts her earlier 50 h testimony insofar as in the earlier testimony she could not state with certainty that the debris in the hallway was reported to the office in person on the day before. The court notes that the record lacks any explanation for this disparate testimony.

As stated, another issue raised in this case is whether case law applying to a theory of recurrent condition applies to this case in order to find negligence on the part of NYCHA. Defendant, citing Gloria v MGM Emerald Enterprises, Inc., supra, argues that the holding of the Second Department that an alleged dangerous condition caused by spillage which cannot be guarded against in advance requires notice in order to be remedied, is analogous to the case at bar and is controlling. Moreover, it should be noted that even if defendants have a general awareness of spilled liquid on stairs, no inference may be drawn that defendants had constructive notice thereof (see Galietta v New York Sports Club, 4 AD3d 499).

With respect to cleaning schedules, credible testimony presented at trial reveals that employees followed a schedule which called for hallways to be inspected twice daily and debris removed. The First Department reasoned in Pfeuffer v New York City Housing Authority, 93 AD3d 470, citing Love v New York City Hous. Auth., 82 AD23d 588) that even if a problem was recurring, the janitorial schedule which included a daily cleanup of garbage and spills and twice daily inspection of stairs was a sufficient predicate for granting summary judgment to defendant.^[FN6]

Thus, even a general awareness of a food debris build up in the vicinity of a garbage chute does not obviate plaintiff's obligation to establish that defendant had actual or constructive notice of the particular condition which caused her to fall (see Galietta v New York sports Club, 4 AD3d 449). Moreover, testimony of the cleaning schedules of daily cleaning and twice daily inspections serves to establish a usual practice of exercising reasonable care under the circumstances.

Accordingly, based on a review of all credible evidence adduced at trial, it is [*5]

ORDERED that verdict is for defendant New York City Housing Authority and the

complaint is dismissed.

ENTER:

_/s/_________________________________________

HON. THOMAS P. ALIOTTA,

J.S.C.

December 2, 2013