Opinion
7168 Index 154379/14
09-27-2018
Robyn HILL, Plaintiff–Respondent, v. MANHATTAN NORTH MANAGEMENT, Defendant–Appellant.
McGaw, Alventosa & Zajac, Jericho (Andrew Zajac and Ross P. Masler of counsel), for appellant. Russo & Toner, LLP, New York (Maurice J. Recchia of counsel), for respondent.
McGaw, Alventosa & Zajac, Jericho (Andrew Zajac and Ross P. Masler of counsel), for appellant.
Russo & Toner, LLP, New York (Maurice J. Recchia of counsel), for respondent.
Renwick, J.P., Gische, Mazzarelli, Kern, Moulton, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered October 18, 2017, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant failed to establish its entitlement to judgment as a matter of law in this action where plaintiff slipped and fell on water in the vestibule of defendant's building. Defendant failed to make a prima facie showing that it lacked constructive notice because the superintendent failed to testify or aver that his assistant adhered to a janitorial schedule on the day of the accident or when the area was last inspected prior to plaintiff's fall (see Ross v. Betty G. Reader Revocable Trust, 86 A.D.3d 419, 421, 927 N.Y.S.2d 49 [1st Dept. 2011] ). Since defendant failed to meet its initial burden to establish that it lacked constructive notice of the alleged defect as a matter of law, the burden never shifted to plaintiff to establish how long the condition existed (see Sabalza v. Salgado, 85 A.D.3d 436, 438, 924 N.Y.S.2d 373 [1st Dept. 2011] ).
Defendant also failed to establish that it lacked constructive notice on the basis that the water was not present in the vestibule for a sufficient period to afford defendant an opportunity to discover and remedy the condition (see Nepomuceno v. City of New York, 137 A.D.3d 646, 646–47, 28 N.Y.S.3d 51 [1st Dept. 2016] ). Whether the water was present for that sufficient period presents an outstanding factual issue, as the time it took plaintiff and her friend to return to the premises from the store is unclear, and defendant failed to clarify the issue at the deposition.