Rain, rain and more rain. The Summer of 2009 in New York will be known for the rain that has fallen. The deluge of more than 16 inches (twice the average amount) made it the second wettest June and July on record, edging 1928.

 

The Appellate Division First Department in  Pomahac v TrizecHahn 1065 Ave. of the Ams., LLC, 2009 NY Slip Op 06223;  decided on August 18, 2009 kept in the spirit of this wet summer with a decision on the issue of liability for rain water tracked in by tenants in a lobby floor. This case involved a "Slip and Fall" accident which occurred in the lobby of a Manhattan residential building managed by defendant TrizecHahn and maintained by defendant ABM on October 29, 2003. The plaintiff claimed the lobby was not maintained in a reasonably safe condition.

 

As set forth in the Court's decision,  "Plaintiff testified at his deposition that he opened the exterior door to the building, walked through a small vestibule, then passed through the interior door leading to the lobby. A mat covered the vestibule floor and a three- to five-foot long mat was placed on the lobby floor immediately past the interior door. The terrazzo lobby floor appeared to plaintiff to be wet, which he attributed to tracked-in rain water from a storm that produced over an inch and a half of rain. The storm had begun several hours before the accident and ended either shortly before or after it. As he entered the lobby, plaintiff noticed a yellow "caution" warning sign approximately 15 feet away and a man mopping the floor near the sign. As he walked past the man mopping the floor, plaintiff slipped and fell; there was no mat where plaintiff fell.

 

A security guard monitoring the lobby testified at his deposition that someone spilled a cup of coffee in the area where plaintiff fell only moments before the accident and that the man mopping the floor was cleaning that spill at the time of the accident."  The plaintiff's engineer claimed defendants should have placed a mat in the area where plaintiff fell because the terrazzo floor, when wet, is extremely slippery.

 

The Court indicated the engineer's affidavit should have no probative value as the engineer " did not identify the basis for the coefficient of friction value he utilized as a standard and did not demonstrate that, at the time he measured the coefficient, the lobby floor was in the same condition as it was on the date of the accident or a substantially similar condition." The Court held the placing of two mats and the yellow caution sign were sufficient evidence of reasonable precaution to exculpate the defendants from liability, holding "... if the source of the moisture was tracked-in rain water, defendants took reasonable measures to remedy it (see Amsel v New York Convention Ctr. Operating. Corp., 60 AD3d 534 [2009]; Ford v Citibank, NA, 11 AD3d 508 [2004]; Sook Ja Lee v Yi Mei Bakery Corp., 305 AD2d 579 [2003]; see also Gale v BP/CG Ctr. I LLC, 49 AD3d 454 (2008).

 

The moral of the story for the nonplussed New Yorkers who pass through the lobby every day without a glance to the surroundings, is to be careful when it's raining,  your beautiful terrazzo lobby floor may be  very slippery. Better yet, when the summary judgment motion comes in,  make sure your engineer uses the correct coefficient of friction value in the affidavit in opposition to the motion for summary judgment. That would make for an odd lobby sign, wouldn't you agree?

 

Read full decision here.

The Court notes: "In determining whether notice was timely, factors to consider include, inter alia, whether the claimant has offered a reasonable excuse for any delay, such as latency of his/her injuries, and evidence of the claimant's due diligence in attempting to establish the insurance status of the other vehicles involved in the accident (see Matter of Metropolitan Property & Cas. Ins. Co. v Mancuso, 93 NY2d at 492-493; Mighty Midgets v Centennial Ins. Co., 47 NY2d at 19-20; Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d at 441; Matter of Blue Ridge Ins. Co. v Cook, 301 AD2d 598, 599; Matter of Allstate Ins. Co. [White], 231 AD2d 950; cf. Matter of Nationwide Mut. Ins. Co. v Wexler, 276 AD2d 490, 491)."

 

In the matter of Progressive Northeastern Ins. Co. v McBride, the respondent had a one year delay in notifying his SUM carrier and prevailed on the issue of timely notice by showing that his Counsel sent several requests to the insurer of his host taxicab and the adverse vehicle for the SUM limits of the respective policies. His requests were either ignored or incorrect information was received. Citing Mighty Midgets v Centennial Ins. Co., 47 NY2d at pp. 20-21, the Appellate Division agreed this excuse was sufficient and thus McBride found himself on the right side of this "Elastic Concept".