Opinion
2021-03906 Index 160716/15
06-17-2021
Nancy Castillo-Sayre et al., Plaintiffs-Respondents, v. Citarella Operating LLC, Defendant-Appellant. Appeal No. 14068 Case No. 2020-03852
Weber Gallagher Simpson Stapleton Fires & Newby, LLP, New York (Robert A. Suarez of counsel), for appellant. Jacoby & Meyers, LLP, Newburgh (James W. Shuttleworth, III of counsel), for respondents.
Weber Gallagher Simpson Stapleton Fires & Newby, LLP, New York (Robert A. Suarez of counsel), for appellant.
Jacoby & Meyers, LLP, Newburgh (James W. Shuttleworth, III of counsel), for respondents.
Before: Acosta, P.J., Webber, Mazzarelli, Kennedy, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered July 28, 2020, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant failed to establish prima facie that it lacked actual or constructive notice of the "fish guts" on the sidewalk adjacent to its market (see Velocci v Stop & Shop, 188 A.D.3d 436, 439 [1st Dept 2020]; Pfeuffer v New York City Hous. Auth., 93 A.D.3d 470, 471-472 [1st Dept 2012]). Defendant's burden as movant was not satisfied by its merely pointing to perceived gaps in plaintiffs' proof (see Vasquez v 3M Co., 177 A.D.3d 428, 429 [1st Dept 2019]; Koulermos v A.O. Smith Water Prods., 137 A.D.3d 575 [1st Dept 2016]).
As to actual notice, defendant's sole witness had no independent knowledge of working on the day of the accident and failed to testify as to an absence of complaints about the sidewalk preceding the accident (see Frederick v New York City Hous. Auth., 172 A.D.3d 545, 545 [1st Dept 2019]).
As to constructive notice, the store manager's testimony as to defendant's typical course of conduct in maintaining its garbage and the sidewalk where plaintiff Castillo-Sayre fell was insufficient, since the manager was unable to say when the area was last cleaned or inspected, and defendants submitted no records or cleaning logs (see Ross v Betty G. Reader Revocable Trust, 86 A.D.3d 419, 421 [1st Dept 2011]; Grossman v TCR, 142 A.D.3d 854, 856 [1st Dept 2016], appeal dismissed 28 N.Y.3d 1110 [2016]). Nor was a lack of constructive notice established by plaintiff Castillo-Sayre's failure to see the alleged condition before she fell, since there is no evidence in the record that the condition was not visible (see Barrett v Aero Snow Removal Corp., 167 A.D.3d 519, 520 [1st Dept 2018]).
Since defendant failed to make its prima facie showing, the burden never shifted to plaintiffs to establish the length of time that the fish guts were on the sidewalk (see Hill v Manhattan N. Mgt., 164 A.D.3d 1187, 1187 [1st Dept 2018]).