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., LPOpinion
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).