Opinion
2022-00604 Index No. 69546/19
08-23-2023
Maria ARMENTA, appellant, v. AAC CROSS COUNTY MALL, LLC, respondent.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant. Morris Duffy Alonso Faley & Pitcoff, New York, NY (Iryna S. Krauchanka and Kevin G. Faley of counsel), for respondent.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.
Morris Duffy Alonso Faley & Pitcoff, New York, NY (Iryna S. Krauchanka and Kevin G. Faley of counsel), for respondent.
ANGELA G. IANNACCI, J.P., LINDA CHRISTOPHER, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated December 22, 2021. The order granted the defendant's motion for summary judgment dismissing the complaint. ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
On April 24, 2019, the plaintiff allegedly slipped and fell on an oily substance on the ground of the exterior parking lot of the defendant's shopping mall. On or about November 27, 2019, the plaintiff commenced this action against the defendant to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the defendant's motion, and the plaintiff appeals.
A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the allegedly hazardous condition that caused the accident, or that it did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it (see Bruni v. Macy's Corporate Servs., Inc., 134 A.D.3d 870, 871, 21 N.Y.S.3d 333 ; see also Mercer v. City of New York, 88 N.Y.2d 955, 647 N.Y.S.2d 159, 670 N.E.2d 443 ; Gambino v. City of New York, 60 A.D.3d 627, 628, 877 N.Y.S.2d 91 ). To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the accident (see Skerrett v. LIC Site B2 Owner, LLC, 199 A.D.3d 956, 958, 158 N.Y.S.3d 186 ; Bonilla v. Southside United Hous. Dev. Fund Corp., 181 A.D.3d 550, 551, 117 N.Y.S.3d 612 ; Sartori v. JP Morgan Chase Bank, N.A., 127 A.D.3d 1157, 7 N.Y.S.3d 548 ). "Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice" ( Herman v. Lifeplex, LLC, 106 A.D.3d 1050, 1051, 966 N.Y.S.2d 473 ; see Rodriguez v. Shoprite Supermarkets, Inc., 119 A.D.3d 923, 989 N.Y.S.2d 855 ; Rogers v. Bloomingdale's, Inc., 117 A.D.3d 933, 933–934, 985 N.Y.S.2d 731 ).
Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the condition that allegedly caused the plaintiff to fall (see Skerrett v. LIC Site B2 Owner, LLC, 199 A.D.3d at 958, 158 N.Y.S.3d 186 ; Bruni v. Macy's Corporate Servs., Inc., 134 A.D.3d at 871, 21 N.Y.S.3d 333 ; Mignogna v. 7–Eleven, Inc., 76 A.D.3d 1054, 1055, 908 N.Y.S.2d 258 ; Backer v. Central Parking Sys., 292 A.D.2d 408, 409, 739 N.Y.S.2d 404 ). The plaintiff testified at her deposition that she saw the oily patch on the ground of the parking lot on her way into the shopping mall, approximately an hour before she slipped and fell after exiting the mall. The defendant's property manager only testified about the defendant's general cleaning and inspection procedures.
The defendant's contention that the presence of the oily substance on the ground of the parking lot was incidental to the use of the premises is without merit (see Gambino v. City of New York, 60 A.D.3d 627, 877 N.Y.S.2d 91 ). Contrary to the defendant's contention, the fact that the oily substance was open and obvious only raised a triable issue of fact as to the issue of the plaintiff's comparative negligence (see Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40 ).
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.
IANNACCI, J.P., CHRISTOPHER, FORD and TAYLOR, JJ., concur.