In Zanki v. Cahill, 2 A.D.3d 197, 768 N.Y.S.2d 471 (1st Dep't 2003), plaintiff claims to have slipped while walking down a flight of stairs. Plaintiff in that instance admitted during her deposition that she did not see "anything on the stairs," including "any debris or liquid" prior to or after her fall.
However, plaintiff did claim that after she fell, she felt an unidentified wet substance on her elbow which touched the floor. Plaintiff in that case further alleged that the property owner was aware of a "recurring and routinely unaddressed" spillage on the stairwell.
The Appellate Division found that "even if it is assumed that plaintiff has sufficiently alleged that defendants had notice of a recurring, and routinely unaddressed, dangerous condition, she did not allege any facts from which it may have been inferred that the alleged recurring condition even existed at the time she fell, much less that such condition proximately caused her mishap." Zanki v. Cahill, 2 A.D.3d 197, 768 N.Y.S.2d 471.
The court found that there was no evidence that spilled substances were responsible for the incident, "critically, plaintiff did not testify that she saw spillage anywhere on the stairwell either immediately before or immediately after her accident" and plaintiff's testimony that her elbow sleeve was wet where it had touched the ground after her fall was insufficient to "support a reasonable inference" that defendant was responsible, either wholly or in part, for her injuries. Zanki v. Cahill, 2 A.D.3d 197, 768 N.Y.S.2d 471.
Consequently, the court found that defendant's summary judgment motion was properly granted. The Court of Appeals affirmed. Zanki v. Cahill, 2 N.Y.3d 783, 812 N.E.2d 1257, 780 N.Y.S.2d 307 (2004).