Opinion
2019–05164 Index No. 702528/16
05-06-2020
Zaheer MERCHANT, Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Respondent.
H. Bruce Fischer Esq. P.C., Tappan, NY, for appellant. Lawrence Heisler, Brooklyn, N.Y. (Timothy J. O'Shaughnessy of counsel), for respondent.
H. Bruce Fischer Esq. P.C., Tappan, NY, for appellant.
Lawrence Heisler, Brooklyn, N.Y. (Timothy J. O'Shaughnessy of counsel), for respondent.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, LINDA CHRISTOPHER, PAUL WOOTEN, JJ.
DECISION & ORDER
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
On October 2, 2015, at approximately 5:15 p.m., the plaintiff allegedly slipped and fell on water while walking inside the 74th Street/Roosevelt Avenue subway station. It was undisputed that it had been raining all day. The plaintiff subsequently commenced this action against the defendant to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiff appeals.
"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 did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it" ( Yarosh v. Oceana & Holding Corp. , 172 A.D.3d 1142, 1143, 101 N.Y.S.3d 72 ). "A defendant has constructive notice of a dangerous condition when the dangerous condition is visible and apparent, and existed for a sufficient length of time before the accident that [it] could have been discovered and corrected" ( Radosta v. Schechter , 171 A.D.3d 1112, 1113, 97 N.Y.S.3d 664 ). "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 ).
Here, the defendant failed to meet its initial burden as the movant to affirmatively demonstrate that it did not have constructive notice of the condition that allegedly caused the plaintiff to fall, because the defendant did not proffer any evidence as to when the subject area was last cleaned or inspected (see Hickson v. Walgreen Co. , 150 A.D.3d 1087, 1087–1088, 56 N.Y.S.3d 157 ; Rogers v. Bloomingdale's, Inc. , 117 A.D.3d 933, 934, 985 N.Y.S.2d 731 ). Since the defendant failed to meet its initial burden as the movant, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint, regardless of 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 ).
MASTRO, J.P., DILLON, CHRISTOPHER and WOOTEN, JJ., concur.