Opinion
03-15-2016
Shelarv GRAHAM, Plaintiff–Appellant, v. YMCA OF GREATER NEW YORK, et al., Defendants–Respondents.
Steven Siegel, P.C., Kew Gardens (Nathan V. Bishop of counsel), for appellant. Gordon & Silber, P.C., New York (Andrew B. Kaufman of counsel), for respondents.
Steven Siegel, P.C., Kew Gardens (Nathan V. Bishop of counsel), for appellant.
Gordon & Silber, P.C., New York (Andrew B. Kaufman of counsel), for respondents.
Opinion
Judgment, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered October 31, 2014, dismissing the complaint in its entirety pursuant to an order, same court and Justice, entered October 2, 2014, which granted the motion of defendant YMCA of Greater New York, also sued herein as YMCA of Greater New York–Bronx, for summary judgment, unanimously modified, on the law, to reinstate the complaint to the extent it alleges that the YMCA had constructive notice of the alleged dangerous condition, and otherwise affirmed, without costs. Appeal from the aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Plaintiff alleges that she slipped and fell on a puddle of water that was on the floor of a YMCA owned and maintained by defendants. The YMCA made a prima facie showing that it did not cause or create the alleged condition, because plaintiff testified that she did not see the YMCA's employees working at the accident location prior to the incident and did not know where the water came from (Briggs v. Pick Quick Foods, Inc., 103 A.D.3d 526, 526, 962 N.Y.S.2d 46 [1st Dept.2013] ). The YMCA also made a prima facie showing that it lacked actual notice of the alleged condition, because the building engineer for the premises averred that he oversaw the maintenance of the premises and did not receive complaints about water on the floor prior to the accident (see Gomez v. J.C. Penny Corp., Inc., 113 A.D.3d 571, 571, 979 N.Y.S.2d 323 [1st Dept.2014] ). However, the YMCA failed to make a prima facie showing that it lacked constructive notice of the alleged defect. The building engineer failed to aver as to when the YMCA's employees last cleaned or inspected the accident location before the incident occurred (see Seleznyov v. New York City Tr. Auth., 113 A.D.3d 497, 498, 979 N.Y.S.2d 44 [1st Dept.2014] ).
Given the foregoing determination, there is no need to consider the sufficiency of plaintiff's opposing papers (id.).