Opinion
2018–08454 Index No. 83/15
12-04-2019
Nicole FORTUNE, Appellant, v. WESTERN BEEF, INC., Respondent.
Becker & D'Agostino, P.C., New York, N.Y. (Michael D'Agostino of counsel), for appellant. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Brooklyn, N.Y. (Anthony J. Genovesi of counsel), for respondent.
Becker & D'Agostino, P.C., New York, N.Y. (Michael D'Agostino of counsel), for appellant.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Brooklyn, N.Y. (Anthony J. Genovesi of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
The plaintiff allegedly was injured when she slipped and fell on a "slimy, thick, clear" liquid on the floor inside a supermarket owned and operated by the defendant. The plaintiff subsequently commenced this action to recover damages for personal injuries, alleging that the defendant was negligent in, among other things, the maintenance of the supermarket. Following discovery, the defendant moved for summary judgment dismissing the complaint, arguing, inter alia, that it lacked constructive notice of the alleged dangerous condition. The Supreme Court, among other things, granted the defendant's motion, and the plaintiff appeals.
A defendant has constructive notice of a dangerous condition when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it (see Gordon v. American Museum of Natural History , 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 ; Butts v. SJF, LLC , 171 A.D.3d 688, 689, 97 N.Y.S.3d 219 ; Cho Lun Yeung v. Selfhelp [KIV] Assoc., L.P. , 170 A.D.3d 653, 653, 95 N.Y.S.3d 312 ). " ‘To meet its initial burden on the issue of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell’ " ( Radosta v. Schechter , 171 A.D.3d 1112, 1113, 97 N.Y.S.3d 664, quoting Birnbaum v. New York Racing Assn., Inc. , 57 A.D.3d 598, 598–599, 869 N.Y.S.2d 222 ; see Lombardo v. Kimco Cent. Islip Venture, LLC , 153 A.D.3d 1340, 60 N.Y.S.3d 497 ). " ‘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’ " ( Butts v. SJF, LLC , 171 A.D.3d at 689, 97 N.Y.S.3d 219, quoting Herman v. Lifeplex, LLC , 106 A.D.3d 1050, 1051, 966 N.Y.S.2d 473 ; see Giantomaso v. T. Weiss Realty Corp. , 142 A.D.3d 950, 951, 37 N.Y.S.3d 313 ).
Here, the evidence submitted by the defendant in support of its motion failed to demonstrate, prima facie, that it lacked constructive notice of the alleged dangerous condition that caused the plaintiff to fall. The deposition testimony of the assistant manager of the supermarket, who did not recall if he was working on the date of the accident, and the affidavit of the defendant's vice president of loss prevention, merely referred to the defendant's general cleaning and inspection practices. The defendant did not proffer any evidence demonstrating when the specific area where the plaintiff fell was last cleaned or inspected before the accident (see Rodriguez v. New York City Hous. Auth. , 169 A.D.3d 947, 948, 94 N.Y.S.3d 318 ; Quinones v. Starret City, Inc. , 163 A.D.3d 1020, 1022, 81 N.Y.S.3d 184 ; Eksarko v. Associated Supermarket , 155 A.D.3d 826, 827, 63 N.Y.S.3d 723 ). Furthermore, the defendant failed to demonstrate, prima facie, that the condition on which the plaintiff fell was not visible and apparent, and would not have been discoverable upon a reasonable inspection of the area where the plaintiff was injured (see Rivera v. Tops Mkts., LLC , 125 A.D.3d 1504, 1505, 4 N.Y.S.3d 431 ; Yioves v. T.J. Maxx, Inc. , 29 A.D.3d 572, 573, 815 N.Y.S.2d 119 ).
Since the defendant did not sustain its prima facie burden of establishing its entitlement to judgment as a matter of law, it is not necessary to consider the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
Accordingly, the defendant's motion for summary judgment dismissing the complaint should have been denied.
DILLON, J.P., COHEN, BARROS and CONNOLLY, JJ., concur.