Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, November 3, 2023

Deputy General Counsel, New York City Transit Authority (Timothy J. O'Shaughnessy and Yolanda Ayala of counsel), for appellant.

Pollack, Pollack, Isaac & DeCicco, LLP (Brian J. Isaac, Jillian Rosen and Kenneth J. Gorman of counsel) for respondent.

Ordered that the judgment is reversed, without costs, the order dated September 10, 2020, is vacated, the branch of defendant's motion pursuant to CPLR 4404 (a) seeking to set aside the jury verdict on the issue of liability and for judgment as a matter of law is granted, and the [*2]complaint is dismissed.

Plaintiff commenced this action to recover for personal injuries sustained on January 28, 2015, after a snowstorm, when she slipped and fell on a wet floor in the mezzanine area of a subway station. At a jury trial, plaintiff's counsel did not call any witnesses employed by defendant; counsel merely read{**81 Misc 3d at 28} from the depositions of the cleaner who reported to work at 7:00 a.m. after plaintiff's accident, and the token booth agent who reported to work at 6:00 a.m. that morning. Plaintiff testified that the snow had stopped falling at around midnight, and that she fell at 6:00 a.m., during the morning rush hour, when the streets and sidewalks were wet from snow. Photographs and a video were admitted into evidence illustrating the wet, slushy and muddy condition of the floor shortly after plaintiff's accident. During its case, defendant called a cleaner who testified that she cleaned the mezzanine floor between 2:05 and 3:00 a.m. on January 28, 2015, and that the floor was dry when she left the station at 3:00 a.m.

After the jury returned a verdict in favor of plaintiff on the issue of liability, a trial on the issue of damages was held. The jury returned a verdict awarding plaintiff $700,000 for past pain and suffering, and $1,100,000 for future pain and suffering. After the trial, defendant moved, pursuant to CPLR 4404 (a), to set aside the jury verdict on the issue of liability and for judgment as a matter of law, or, in the alternative, to set aside that jury verdict as contrary to the weight of the evidence and order a new trial, or, in the alternative, to set aside the jury verdict on the issue of damages as excessive. The court denied the branch of defendant's motion seeking to set aside the jury verdict on the issue of liability, but granted the branch of the motion seeking to set aside the jury verdict on the issue of damages and ordered a new trial thereon, unless plaintiff stipulated to reduce the awards to $400,000 for past pain and suffering, and $300,000 for future pain and suffering. On November 19, 2021, the Civil Court entered a judgment awarding plaintiff the principal sum of $700,000.

"[A] defendant may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a [premises] if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial action" (Peralta-Mejia v Park Terrace Owners, LLC, 200 AD3d 727, 728 [2d Dept 2021]; see Radosta v Schechter, 171 AD3d 1112, 1113 [2d Dept 2019]; Gonzalez v Jenel Mgt. Corp., 11 AD3d 656, 656 [2d Dept 2004]). A "general awareness that [precipitation] may be tracked into a [premises] during inclement weather is insufficient to establish constructive notice of the particular condition which caused the plaintiff to fall" (Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d 511, 512 [2d Dept 2005]; see Solazzo{**81 Misc 3d at 29} v New York City Tr. Auth., 6 NY3d 734, 735 [2005]; Gonzalez v Jenel Mgt. Corp., 11 AD3d at 657). "To establish the existence of constructive notice, a plaintiff must show that the defect was visible and apparent and that the defect existed for a sufficient length of time prior to an accident to permit the defendant's employees to discover and remedy it" (Anthony v New York City Tr. Auth., 38 AD3d 484, 485-486 [2d Dept 2007]; see Gonzalez v Jenel Mgt. Corp., 11 AD3d at 656).

Here, plaintiff failed to present any evidence at trial as to how long the floor was in a dangerous condition prior to the time she fell. Consequently, she failed to establish a prima facie case that defendant had a "sufficient length of time prior to [her] accident" to remedy the condition of the floor (Anthony v New York City Tr. Auth., 38 AD3d at 485-486; see Gonzalez v Jenel Mgt. Corp., 11 AD3d at 656). Any finding that the floor existed in the condition that [*3]caused her to fall for hours before her accident would be based on speculation (see Harrison v New York City Tr. Auth., 113 AD3d 472, 474 [1st Dept 2014]; Gonzalez v Jenel Mgt. Corp., 11 AD3d at 657; Urena v New York City Tr. Auth., 248 AD2d 377, 378 [2d Dept 1998]). Further, "[a] property owner is not obligated to cover all of its floors with mats or to continuously mop up all moisture resulting from tracked-in precipitation" (Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d at 512; see Ford v Citibank, N.A., 11 AD3d 508, 509 [2d Dept 2004]; Hong Xia Wang v JPMorgan Chase & Co., 36 Misc 3d 132[A], 2012 NY Slip Op 51297[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In light of the foregoing, "there [was] no valid line of reasoning and permissible inferences which could [have led] rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial" (Anthony v New York City Tr. Auth., 38 AD3d at 485; see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]), and therefore, the court erred in not granting defendant's motion to set aside the jury verdict and for judgment as a matter of law (see Piacquadio v Recine Realty Corp., 84 NY2d 967, 968 [1994]; Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 251 [1st Dept 1984], affd 64 NY2d 670 [1984]).

Accordingly, the judgment is reversed, the order dated September 10, 2020, is vacated, the branch of defendant's motion pursuant to CPLR 4404 (a) seeking to set aside the jury{**81 Misc 3d at 30} verdict on the issue of liability and for judgment as a matter of law is granted, and the complaint is dismissed.

Buggs, J.P., Mundy and Hom, JJ., concur.