Opinion
2021–07842 Index No. 708609/18
12-27-2023
Myrtle CROAKE, appellant, v. FLUSHING HOSPITAL AND MEDICAL CENTER, respondent.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant. Martin Clearwater & Bell LLP, East Meadow, NY (Gregory A. Cascino and Jacqueline D. Berger of counsel), for respondent.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.
Martin Clearwater & Bell LLP, East Meadow, NY (Gregory A. Cascino and Jacqueline D. Berger of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, WILLIAM G. FORD, CARL J. LANDICINO, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Darrell L. Gavrin, J.), entered October 8, 2021. The order 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 commenced this action against the defendant to recover damages for personal injuries that she allegedly sustained when she slipped and fell on a slippery substance on a floor of a corridor in the defendant's hospital. The defendant moved for summary judgment dismissing the complaint. In an order entered October 8, 2021, the Supreme Court granted the defendant's motion, and the plaintiff appeals.
"In a premises liability case, a defendant real property owner or a party in possession or control of real property that moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence" ( Bayer v. Savan Hospitality Corp., 215 A.D.3d 906, 907, 187 N.Y.S.3d 316 [internal quotation marks omitted]). "A defendant is deemed to have constructive notice of a dangerous condition on its property when the condition is visible and apparent, and existed for a sufficient length of time prior to the accident to permit the defendant's employees to discover the condition and remedy it" ( Morlan v. Atlantic Westerly Co., 214 A.D.3d 787, 788, 186 N.Y.S.3d 57 ; 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 ).
Here, the defendant failed to eliminate triable issues of fact as to whether it had constructive notice of the alleged slippery condition. The defendant's evidence that the corridor was inspected more than an hour before the accident was insufficient to establish that the condition did not exist for a sufficient length of time prior to the accident to permit the defendant's employees to discover and remedy the condition. The plaintiff's deposition testimony, submitted by the defendant in support of its motion, established that there were at least three nurses and a doctor present in the corridor at the time of her fall (see Negri v. Stop & Shop, Inc., 65 N.Y.2d 625, 626, 491 N.Y.S.2d 151, 480 N.E.2d 740 ;
Clark v. Stop & Shop Supermarket Co., LLC, 204 A.D.3d 746, 747, 164 N.Y.S.3d 463 ). Contrary to the defendant's contention, the plaintiff's deposition testimony that she did not notice anything on the floor before she fell was insufficient to establish that the condition would not have been discoverable upon a reasonable inspection (see Melendez v. Alliance Hous. Assoc., L.P., 201 A.D.3d 437, 438, 156 N.Y.S.3d 736 ; cf. Reed v. 64 JWB, LLC, 171 A.D.3d 1228, 1229, 98 N.Y.S.3d 636 ).
Accordingly, 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 ).
In light of our determination, we need not reach the defendant's remaining contentions.
BRATHWAITE NELSON, J.P., MALTESE, FORD and LANDICINO, JJ., concur.