Opinion
2012-10-17
Fran PETERSEL, appellant, v. GOOD SAMARITAN HOSPITAL OF SUFFERN, N.Y., respondent.
Neimark & Neimark LLP, New City, N.Y. (Ira H. Lapp and Mark Cambareri of counsel), for appellant. Geisler Gabriele & Marano, LLP, Garden City, N.Y. (Lori A. Marano and Anthony M. Soscia, Jr., of counsel), for respondent.
Neimark & Neimark LLP, New City, N.Y. (Ira H. Lapp and Mark Cambareri of counsel), for appellant.Geisler Gabriele & Marano, LLP, Garden City, N.Y. (Lori A. Marano and Anthony M. Soscia, Jr., of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Rockland County (Jamieson, J.), dated October 4, 2011, 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.
A defendant moving for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it ( see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;Johnson v. Culinary Inst. of Am., 95 A.D.3d 1077, 1078, 944 N.Y.S.2d 307;Amendola v. City of New York, 89 A.D.3d 775, 775, 932 N.Y.S.2d 172). “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 Klerman v. Fine Fare Supermarket, 96 A.D.3d 907, 946 N.Y.S.2d 506).
Here, affording the plaintiff the benefit of every reasonable inference that can be drawn from the testimony, the defendant failed to establish, prima facie, that it did not have constructive notice of the allegedly hazardous condition ( see e.g. Armellino v. Thomase, 72 A.D.3d 849, 850, 899 N.Y.S.2d 339;Secof v. Greens Condominium, 158 A.D.2d 591, 593, 551 N.Y.S.2d 563).
The defendant's remaining contentions are without merit.
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.