Opinion
630 CA 21-01636
09-30-2022
Donna ANDREWS and Lawrence Andrews, Plaintiffs-Appellants, v. JCP GROCERIES, INC., Doing Business as Save-A-Lot Food Stores, Defendant-Respondent.
ALEXANDER & ASSOCIATES, EAST SYRACUSE (JAMES L. ALEXANDER OF COUNSEL), FOR PLAINTIFFS-APPELLANTS. OSBORN, REED & BURKE, LLP, ROCHESTER (MICHAEL C. PRETSCH OF COUNSEL), FOR DEFENDANT-RESPONDENT.
ALEXANDER & ASSOCIATES, EAST SYRACUSE (JAMES L. ALEXANDER OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
OSBORN, REED & BURKE, LLP, ROCHESTER (MICHAEL C. PRETSCH OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the complaint insofar as the complaint, as amplified by the bill of particulars, alleges that defendant had constructive notice of the allegedly dangerous condition, and as modified the order is affirmed without costs.
Memorandum: In this personal injury action arising from an accident in which Donna Andrews (plaintiff) slipped and fell in defendant's supermarket, plaintiffs appeal from an order that granted defendant's motion for summary judgment dismissing the complaint. Generally, "landowners and business proprietors have a duty to maintain their properties in reasonably safe condition" ( Cox v. McCormick Farms, Inc. , 144 A.D.3d 1533, 1533-1534, 40 N.Y.S.3d 837 [4th Dept. 2016] ; see Gronski v. County of Monroe , 18 N.Y.3d 374, 379, 940 N.Y.S.2d 518, 963 N.E.2d 1219 [2011], rearg denied 19 N.Y.3d 856, 946 N.Y.S.2d 562, 969 N.E.2d 780 [2012] ). Thus, "[i]n seeking summary judgment, a defendant landowner [or business proprietor] has the initial burden of establishing its entitlement to judgment as a matter of law by demonstrating that it did not create or have actual or constructive notice of a dangerous condition on the premises" ( Menear v. Kwik Fill , 174 A.D.3d 1354, 1357, 105 N.Y.S.3d 766 [4th Dept. 2019] ).
Here, contrary to plaintiffs’ contention, defendant met its initial burden on its motion of establishing that it did not have actual notice of any dangerous condition by submitting evidence "that [it] did not receive any complaints concerning the area where plaintiff fell and [was] unaware of any water or other substance in that location prior to plaintiff's accident" ( Navetta v. Onondaga Galleries LLC , 106 A.D.3d 1468, 1469, 964 N.Y.S.2d 835 [4th Dept. 2013] ; see Danielak v. State of New York , 185 A.D.3d 1389, 1389-1390, 128 N.Y.S.3d 103 [4th Dept. 2020], lv denied 35 N.Y.3d 918, 133 N.Y.S.3d 548, 158 N.E.3d 565 [2020] ). In opposition, plaintiffs failed to raise a triable issue of fact with respect to actual notice (see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Similarly, defendant met its initial burden on its motion of establishing that it did not create the dangerous condition that caused plaintiff to slip (cf. generally Brown v. Simone Dev. Co., L.L.C. , 83 A.D.3d 544, 544-545, 922 N.Y.S.2d 21 [1st Dept. 2011] ; Henderson v. L & K Collision Corp. , 146 A.D.2d 569, 571, 536 N.Y.S.2d 183 [2d Dept. 1989] ) and, in opposition, plaintiffs failed to raise a triable issue of fact whether defendant created that condition. Thus, we reject plaintiffs’ contention that Supreme Court erred in granting the motion in those respects.
We agree with plaintiffs, however, that the court erred in granting the motion with respect to the claim that defendant had constructive notice of the dangerous condition, and we therefore modify the order accordingly. Defendant failed to meet its initial burden on that issue inasmuch as its own submissions raise triable issues of fact whether the wet floor "was visible and apparent and existed for a sufficient length of time prior to plaintiff's fall to permit [defendant's employees] to discover and remedy it" ( Navetta , 106 A.D.3d at 1469, 964 N.Y.S.2d 835 [internal quotation marks omitted]; see Clarke v. Wegmans Food Mkts., Inc. , 147 A.D.3d 1401, 1402, 46 N.Y.S.3d 360 [4th Dept. 2017] ; King v. Sam's E., Inc. , 81 A.D.3d 1414, 1415, 917 N.Y.S.2d 480 [4th Dept. 2011] ; see generally Gordon v. American Museum of Natural History , 67 N.Y.2d 836, 837-838, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ). Although defendant submitted the affidavit and deposition testimony of its former store manager, in which he indicated that store employees routinely frequented the area and would have looked for dangerous conditions, defendant's evidence failed to establish that the employees actually performed any security sweeps on the day of the incident, or that anyone actually inspected the area in question before plaintiff's fall. Consequently, defendant failed to eliminate all issues of fact with respect to constructive notice (see Farrauto v. Bon-Ton Dept. Stores, Inc. , 143 A.D.3d 1292, 1293, 38 N.Y.S.3d 870 [4th Dept. 2016] ; Johnson v. Panera, LLC , 59 A.D.3d 1118, 1118, 873 N.Y.S.2d 828 [4th Dept. 2009] ).