Opinion
2013-12-12
Julio GUERRERO, Plaintiff–Appellant, v. DUANE READE, INC., Defendant–Respondent.
The Sullivan Law Firm, New York (James A. Domini of counsel), for appellant. Chesney & Nicholas, LLP, Baldwin (Harry T. Brew of counsel), for respondent.
The Sullivan Law Firm, New York (James A. Domini of counsel), for appellant. Chesney & Nicholas, LLP, Baldwin (Harry T. Brew of counsel), for respondent.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered November 23, 2012, which granted defendant Duane Reade, Inc.'s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
In this slip and fall action, defendant failed to establish as a matter of law that it did not create or have actual or constructive notice of a hazardous condition, since it failed to offer specific evidence as to its activities on the day of the accident, including, but not limited to, when the area where plaintiff fell was last inspected ( see e.g. Cater v. Double Down Realty Corp., 101 A.D.3d 506, 954 N.Y.S.2d 877 [1st Dept.2012] ). In addition, plaintiff testified it had been raining or drizzling continuously prior to his accident and that he had seen mats rolled up in front of the store, but not placed down where he fell, giving rise to a question of fact as to whether defendant knew or should have known of the dangerous condition (Signorelli v. Great Atl. & Pac. Tea Co., Inc., 70 A.D.3d 439, 440, 894 N.Y.S.2d 409 [1st Dept.2010] ). MAZZARELLI, J.P., SWEENY, DeGRASSE, MANZANET–DANIELS, FEINMAN, JJ., concur.