Opinion
2014-12-3
Carol HECK, appellant, v. Arthur REGULA, respondent.
Finkelstein & Partners, LLP, Newburgh, N.Y. (George A. Kohl II of counsel), for appellant. Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Kingston, N.Y. (Michael T. Cook of counsel), for respondent.
Finkelstein & Partners, LLP, Newburgh, N.Y. (George A. Kohl II of counsel), for appellant. Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Kingston, N.Y. (Michael T. Cook of counsel), for respondent.
REINALDO E. RIVERA, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated February 10, 2014, which 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.
The plaintiff allegedly slipped and fell on a patch of ice located in the vestibule area of the laundry room within an apartment complex owned by the defendant.
A real property owner or a party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition or had actual or constructive notice of it ( see Dhu v. New York City Hous. Auth., 119 A.D.3d 728, 729, 989 N.Y.S.2d 342; Cruz v. Rampersad, 110 A.D.3d 669, 972 N.Y.S.2d 302; Cantwell v. Fox Hill Community Assn., Inc., 87 A.D.3d 1106, 930 N.Y.S.2d 459). Thus, 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 neither created the dangerous condition, nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it ( see Dhu v. New York City Hous. Auth., 119 A.D.3d at 729, 989 N.Y.S.2d 342; Cruz v. Rampersad, 110 A.D.3d at 670, 972 N.Y.S.2d 302). “To meet its initial burden on the issue of lack 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” (Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598–599, 869 N.Y.S.2d 222; see Dhu v. New York City Hous. Auth., 119 A.D.3d at 729, 989 N.Y.S.2d 342; Oliveri v. Vassar Bros. Hosp., 95 A.D.3d 973, 975, 943 N.Y.S.2d 604; Mei Xiao Guo v. Quong Big Realty Corp., 81 A.D.3d 610, 611, 916 N.Y.S.2d 155).
Here, the defendant failed to satisfy his initial burden. The defendant's deposition testimony merely referred to his general practice of going to the laundry room about once a week, or perhaps more in the cold weather. The defendant tendered no evidence as to when the area in question was last inspected before the time when the plaintiff allegedly fell ( see Oliveri v. Vassar Bros. Hosp., 95 A.D.3d at 975, 943 N.Y.S.2d 604; Mei Xiao Guo v. Quong Big Realty Corp., 81 A.D.3d at 611, 916 N.Y.S.2d 155).
As the defendant failed to meet his prima facie burden, it is not necessary to consider the sufficiency of the plaintiff's opposition papers ( see Oliveri v. Vassar Bros. Hosp., 95 A.D.3d at 975, 943 N.Y.S.2d 604). Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.