Opinion
2003-01234
Argued September 12, 2003.
October 27, 2003.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated December 17, 2002, which denied its motion for summary judgment dismissing the complaint.
Steven G. Fauth, New York, N.Y. (Lowell D. Aptman of counsel), for appellant.
Irving Levine (John Burnett, New York, N.Y., of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The plaintiff slipped and fell on a puddle of water on the marble floor near the elevator in a residential apartment building owned by the defendant. It had been raining for approximately two and a half hours before the accident. The Supreme Court denied the defendant's motion for summary judgment dismissing the complaint, finding that an issue of fact existed as to whether the defendant had notice of the wet condition. We reverse.
To make out a prima facie case of negligence in a slip-and-fall case, a plaintiff must demonstrate that the defendant either created or had actual or constructive notice of the condition which caused the accident ( see Madrid v. City of New York, 42 N.Y.2d 1039; Putnam v. Stout, 38 N.Y.2d 607, 612; Pianforini v. Kelties Bum Steer, 258 A.D.2d 634, 635; Campbell v. Great Atl. Pac. Tea Co., 257 A.D.2d 642).
In this case, the defendant made a prima facie showing of its entitlement to judgment as a matter of law by presenting proof that it neither created nor had actual or constructive notice of the wet condition which allegedly caused the plaintiff to fall ( see Seneglia v. FPL Foods, 273 A.D.2d 221). The plaintiff's contention that the defendant created the hazardous condition by failing to put down mats in inclement weather is insufficient to defeat the defendant's motion for summary judgment ( see Negron v. St. Patrick's Nursing Home, 248 A.D.2d 687; Kovelsky v. City University of New York, 221 A.D.2d 234)
Furthermore, the plaintiff failed to proffer any evidence demonstrating either that the defendant had actual notice of the condition or that the condition was visible and apparent for a sufficient period of time to impute constructive notice to the defendant ( see Lynch v. Middle Country Cent. School Dist., 283 A.D.2d 404; Chemont v. Pathmark Supermarkets, 279 A.D.2d 545; Dwoskin v. Burger King Corp., 249 A.D.2d 358).
SANTUCCI, J.P., S. MILLER, McGINITY and SCHMIDT, JJ., concur.