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Hale v. Wilmorite

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 22, 2006
35 A.D.3d 1251 (N.Y. App. Div. 2006)

Summary

affirming directed verdict for defendant where record contained no "evidence of actual notice . . . and the lapse of a reasonable time for [defendants] to correct the condition or warn of its existence"

Summary of this case from Johnson v. Wal-Mart Stores E., LP

Opinion

December 22, 2006.

Appeal from a judgment and order (one paper) of the Supreme Court, Wayne County (Stephen R. Sirkin, A.J.), entered March 15, 2006 in a personal injury action. The judgment and order granted defendants' motion for a directed verdict dismissing the complaint.

FOLEY AND FOLEY, PALMYRA (JAMES F. FOLEY OF COUNSEL), for Plaintiff-Appellant.

TREVETT CRISTO SALZER ANDOLINA, P.C., ROCHESTER (CYNTHIA A. CONSTANTINO OF COUNSEL), for Defendants-Respondents.

Before: Present — Hurlbutt, J.P., Smith, Centra and Pine, JJ.


It is hereby ordered that the judgment and order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for personal injuries sustained by her in a slip and fall on premises allegedly owned by defendant Wilmorite, Inc. and managed by defendant Genesee Management, Inc. In appeal No. 1, plaintiff appeals from a judgment and order granting defendants' motion for a directed verdict dismissing the complaint with prejudice at the close of proof for plaintiffs failure to make out a prima facie case of negligence ( see CPLR 4401). In appeal No. 2, plaintiff appeals from a subsequent order denying her motion for leave to reargue the motion for a directed verdict. Because no appeal lies from an order denying a motion for leave to reargue ( see Empire Ins. Co. v Food City, 167 AD2d 983, 984), appeal No. 2 must be dismissed.

With respect to appeal No. 1, we conclude that Supreme Court properly directed a verdict in favor of defendants. The record is devoid of any evidence of actual notice of the wet condition to defendants and the lapse of a reasonable time for them to correct the condition or warn about its existence ( see Mercer v City of New York, 88 NY2d 955, 956, citing Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249, affd for reasons stated below 64 NY2cl 670 [1984]). Further, the record is lacking in any evidence from which constructive notice might be inferred ( see Hammer v KMart Corp., 267 AD2d 1100, lv denied 95 NY2d 757; see generally Gordon v American Museum of Natural History, 67 NY2d 836, 837-838). Although a plaintiff is not required to prove that the defendants knew or should have known of the existence of a particular defect where they had actual notice of a recurrent dangerous condition in that location ( see Chrisler v Spencer, 31 AD3d 1124, 1125; Hammer, 267 AD2d at 1100; Camizzi v Tops, Inc., 244 AD2d 1002), here there is no evidence from which it might be inferred that there was in fact a "recurring dangerous condition in the area of the slip and fall that was routinely left unaddressed" ( Solazzo v New York City Tr. Auth., 21 AD3d 735, 736, affd 6 NY3d 734). A "general awareness that [an area may] become wet during inclement weather [is] insufficient to establish constructive notice of the specific condition causing plaintiff's injury" ( Solazzo, 6 NY3d at 735, citing Piacquadio v Recine Realty Corp., 84 NY2d 967, 969). Moreover, the "evidence concerning the putting down of mats [does not] tend to show a recurring dangerous condition in the particular area where plaintiff fell" ( Solazzo, 21 AD3d at 737; see Keum Choi v Olympia York Water St. Co., 278 AD2d 106, 107).


Summaries of

Hale v. Wilmorite

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 22, 2006
35 A.D.3d 1251 (N.Y. App. Div. 2006)

affirming directed verdict for defendant where record contained no "evidence of actual notice . . . and the lapse of a reasonable time for [defendants] to correct the condition or warn of its existence"

Summary of this case from Johnson v. Wal-Mart Stores E., LP
Case details for

Hale v. Wilmorite

Case Details

Full title:BRENDA K. HALE, Appellant, v. WILMORITE, INC., et al., Respondents and…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 22, 2006

Citations

35 A.D.3d 1251 (N.Y. App. Div. 2006)
2006 N.Y. Slip Op. 9863
827 N.Y.S.2d 387

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