Opinion
No. 15 CA 23-00308
03-15-2024
INEZ MIRCO, PLAINTIFF-RESPONDENT, v. TOPS MARKETS, LLC, AND TOPS MARKETS, LLC, DOING BUSINESS AS TOPS FRIENDLY MARKETS, DEFENDANTS-APPELLANTS.
NASH CONNORS, P.C., BUFFALO (JAMES J. NASH OF COUNSEL), FOR DEFENDANTS-APPELLANTS. SHAW & SHAW, P.C., HAMBURG (LEONARD D. ZACCAGNINO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
NASH CONNORS, P.C., BUFFALO (JAMES J. NASH OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
SHAW & SHAW, P.C., HAMBURG (LEONARD D. ZACCAGNINO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, OGDEN, NOWAK, AND DELCONTE, JJ.
Appeal from an order of the Supreme Court, Erie County (Catherine R. Nugent Panepinto, J.), entered February 1, 2023. The order denied defendants' motion for summary judgment.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this personal injury action arising from injuries plaintiff allegedly sustained when she slipped and fell on chicken grease near the rotisserie chicken display in defendants' supermarket, defendants appeal from an order denying their motion for summary judgment dismissing the complaint. We affirm.
Generally, "landowners and business proprietors have a duty to maintain their properties in reasonably safe condition" (Andrews v JCP Groceries, Inc., 208 A.D.3d 1607, 1607-1608 [4th Dept 2022] [internal quotation marks omitted]). Thus, as the proponents of a motion for summary judgment, "defendant[s] had the initial burden of establishing that [they] did not create the dangerous condition that caused plaintiff to fall and did not have actual or constructive notice thereof" (Rivera v Tops Mkts., LLC, 125 A.D.3d 1504, 1505 [4th Dept 2015] [internal quotation marks omitted]).
Contrary to defendants' contention, we conclude that they failed to meet their initial burden of establishing that they did not create the allegedly dangerous condition. In support of their motion, defendants submitted the deposition testimony of a former supermarket employee, who testified that the rotisserie chicken display near where plaintiff fell was too hot and caused the bottoms of the chicken packaging to melt and leak grease. Thus, triable issues of fact exist with respect to whether defendants created the allegedly dangerous condition (see Lauzon v Stop & Shop Supermarket, 188 A.D.3d 856, 857 [2d Dept 2020]; see also Bregaudit v Loretto Health & Rehabilitation Ctr., 211 A.D.3d 1582, 1585 [4th Dept 2022]; Britt v Northern Dev. II, LLC, 199 A.D.3d 1434, 1436 [4th Dept 2021]).
We likewise conclude that defendants failed to meet their initial burden of establishing that they did not have actual notice of the allegedly dangerous condition. Although defendants submitted the deposition testimony of the manager on duty in which she testified that she did not personally observe any dangerous condition in the area where plaintiff fell, defendants "failed to submit any evidence establishing that other employees did not observe any [grease] on the [floor] before [the accident]" (Lewis v Carrols LLC, 158 A.D.3d 1055, 1056 [4th Dept 2018] [internal quotation marks omitted]; see Rivera, 125 A.D.3d at 1505).
Finally, we conclude that defendants also failed to meet their initial burden of establishing that they did not have constructive notice of the allegedly dangerous condition. "To constitute constructive notice, a defect [or dangerous condition] must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [a] defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837 [1986]; see Rivera, 125 A.D.3d at 1505). Thus, "[t]o meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall" (Clark v Stop & Shop Supermarket Co., LLC, 204 A.D.3d 746, 747 [2d Dept 2022]; see generally Hunt v Dolgencorp of N.Y., Inc., 207 A.D.3d 1172, 1172-1173 [4th Dept 2022]). "Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice" (Rodriguez v Shoprite Supermarkets, Inc., 119 A.D.3d 923, 923 [2d Dept 2014] [internal quotation marks omitted]; see Carr v Midtown Rochester Props., LLC, 67 A.D.3d 1469, 1469-1470 [4th Dept 2009]). In this case, although defendants submitted deposition testimony and an affidavit from the manager on duty indicating that she and other employees were responsible for performing inspections every 15 to 20 minutes, defendants' submissions did not establish that the inspections actually occurred. Rather, the manager on duty averred only that she had "walked through" the area where plaintiff fell. Defendants' submissions are devoid of evidence that the manager on duty, or any other employee, performed an inspection, and triable issues of fact therefore remain with respect to whether defendants had constructive notice (see Clark, 204 A.D.3d at 747; Arghittu-Atmekjian v TJX Cos., Inc., 193 A.D.3d 1395, 1396 [4th Dept 2021]; Farrauto v Bon-Ton Dept. Stores, Inc., 143 A.D.3d 1292, 1293 [4th Dept 2016]).