Opinion
Index No. 504797/2019
10-19-2022
Phyllis Torres, Plaintiff, v. Congregation Saad V'Ezer, Inc., Defendants.
Douglas Hoffer, Esq., Attorneys for Plaintiff Frank G. DiSpirito, Esq., Attorneys for defendant
Unpublished Opinion
Douglas Hoffer, Esq., Attorneys for Plaintiff
Frank G. DiSpirito, Esq., Attorneys for defendant
Odessa Kennedy, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this Motion:
Papers
NYSCEF Document No.
Motion Sequence No. 1
Notice of Motion, Affirmation in Support 17-27
Opposition 28-32
Reply35-39
Motion Sequence No. 2
Notice of Motion, Affirmation in Support 41-48
Opposition
None
Upon review of the foregoing papers, defendant's motion for summary judgment pursuant to CPLR 3212, seeking dismissal of the complaint (Motion Seq. No. 1) is denied, and defendant's separate motion pursuant to CPLR 602 for an order of consolidation (Motion Seq. No. 2) is granted, without opposition.
Motion Seq. No. 1
"Summary judgment is a drastic remedy and should not be granted when there is any doubt as to the existence of a triable issue of fact" (Trio Asbestos Removal Corp. v. Gabriel & Sciacca Certified Pub. Accts., LLP, 164 A.D.3d 864, 865 (2d Dept 2018). "In a slip-and-fall case, a defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the allegedly hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it." Sesina v. Joy Lea Realty, LLC, 123 A.D.3d 1000, 1001 (2d Dept 2014). "With respect to the issue of constructive notice, to meet its initial burden, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell." Id. (internal quotation marks and citations omitted). "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." Id. at 1001, quoting Herman v. Lifeplex, LLC, 106 A.D.3d 1050, 1051 (2d Dept 2013).
Here, on its motion for summary judgment, defendant fails to eliminate triable issues of fact as to whether it had constructive notice of the allegedly hazardous condition on the sidewalk, since it "failed to proffer any evidence demonstrating when the subject area was last cleaned or inspected prior to the plaintiff's accident" (Sesina, 123 A.D.3d at 1001). The affidavit submitted by defendant only provided information about defendant's general cleaning procedures without specifying when the subject area was last inspected or cleaned prior to the alleged incident. Defendant further failed to submit an affidavit of the "janitor" employed by defendant who was purportedly tasked with cleaning defendant's premises or an explanation as to why the janitor's affidavit was not submitted. Since defendant failed to meet its burden of demonstrating, prima facie, that it did not have actual or constructive notice of the allegedly hazardous condition, the Court need not address whether defendant met its burden to establish that it did not create the allegedly hazardous condition.
Based on the foregoing, it is hereby ORDERED that defendant's motion for summary judgment pursuant to CPLR 3212 is denied.
Motion Seq. No. 2
Defendant's motion pursuant to CPLR 602 consolidating action no. 1, entitled PHYLLIS TORRES v. CONGREGATION SAAD V'EZER, INC., Index No. 504797/2019 with action no. 2, entitled PHYLLIS TORRES v. CONGREGATION OHEL TORAH, Index No. 518549/2021, is granted without opposition.
It is hereby ORDERED that Motion Seq. No. 2 is granted to the extent that action no. 1 (No.504797/2019) and action no. 2 (#518549/2021) are consolidated for all purposes; and it is further
ORDERED that the Clerk of Kings County is directed to consolidate the file of index # 518549/2021 into index # 504797/2019; and it is further
ORDERED that the pleadings in each action shall stand as the pleadings in the consolidated action; and it is further
ORDERED, that a copy of this order with notice of entry shall be served upon all parties to the consolidated action; and it is further
ORDERED, that the caption shall read as follows:
PHYLLIS TORRES, Plaintiff, against
CONGREGATION SAAD V'EZER, INC. and CONGREGATION OHEL TORAH, Defendants.
Index No: 504797/2019
This constitutes the Order of the Court.