Opinion
04-17-2024
Finn ROTHMAN, appellant, v. FAIRFIELD MASTIC, LLC, respondent.
Cellino Law LLP, Garden City, NY ( John E. Lavelle of counsel), for appellant. Margaret G. Klein (Barclay Damon LLP, Albany, NY [Colm P. Ryan and Benjamin J. Wisher], of counsel), for respondent.
Cellino Law LLP, Garden City, NY ( John E. Lavelle of counsel), for appellant.
Margaret G. Klein (Barclay Damon LLP, Albany, NY [Colm P. Ryan and Benjamin J. Wisher], of counsel), for respondent.
COLLEEN D. DUFFY, J.P., PAUL WOOTEN, LILLIAN WAN, JANICE A. TAYLOR, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Robert F. Quinlan, J.), dated August 18, 2020. The order granted the defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly was injured when he slipped and fell on ice on the defendant’s premises. Thereafter, the plaintiff commenced this action to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint. The plaintiff opposed the motion. In an order dated August 18, 2020, the Supreme Court granted the defendant’s motion. The plaintiff appeals.
[1–3] In a slip-and-fall case, a defendant property owner moving for summary judgment must demonstrate, prima facie, that it " ‘neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence’ " (Padel v. Nisanov, 203 A.D.3d 1058, 1058, 162 N.Y.S.3d 765, quoting Panetti v. Wal–Mart Stores, Inc., 29 N.Y.3d 1136, 1137, 61 N.Y.S.3d 523, 83 N.E.3d 853; see Shatku v. EFG & P, LLC, 212 A.D.3d 679, 679, 179 N.Y.S.3d 614). A defendant has constructive notice of a condition on its premises when the condition is " ‘visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected’ ’’ (Vaughn v. Westfield, LLC, 216 A.D.3d 849, 850, 188 N.Y.S.3d 651, quoting Toussaint v. Ocean Ave. Apt. Assoc., LLC, 144 A.D.3d 664, 665, 40 N.Y.S.3d 508; see McDonnell v. Our Lady of Mercy R.C. Church, 209 A.D.3d 729, 729, 176 N.Y.S.3d 644). To demonstrate that it did not have constructive notice of a defective condition on its premises, a defendant must establish "when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Breland-Marrow v. RXR Realty, LLC, 208 A.D.3d 627, 628, 173 N.Y.S.3d 601; see Edwards v. Genting N.Y., LLC, 217 A.D.3d 749, 750, 191 N.Y.S.3d 149).
[4] Here, the defendant established, prima facie, that it neither created the alleged ice condition nor had actual or constructive notice of the condition (see Breland–Marrow v. RXR Realty, LLC, 208 A.D.3d at 629, 173 N.Y.S.3d 601). The defendant showed that it had an inclement weather protocol for salting and sanding the sidewalk area, that it had not received any complaints about the alleged icy condition (see Zimmer v. County of Suffolk, 190 A.D.3d 898, 899, 139 N.Y.S.3d 615; Meade v. New York City Hous. Auth., 189 A.D.3d 1390, 1392, 138 N.Y.S.3d 564), that it maintained a snow log which indicated when the area was last inspected, and that there was no indication that ice was present when the area was last inspected (see Meade v. New York City Hous. Auth., 189 A.D.3d at 1392, 138 N.Y.S.3d 564).
In opposition, the plaintiff failed to raise a triable issue of fact (see Shatku v. EFG & P, LLC, 212 A.D.3d at 680, 179 N.Y.S.3d 614; Elizee v. Village of Amityville, 172 A.D.3d 1004, 1005, 101 N.Y.S.3d 120). Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint.
DUFFY, J.P., WOOTEN, WAN and TAYLOR, JJ., concur.