Opinion
12094 Index No. 27143/16 Case No. 2020-01896
10-15-2020
Odessa WHITE, Plaintiff–Appellant, v. MP 40 REALTY MANAGEMENT LLC, Defendant–Respondent.
Law Office of Ephrem J. Wertenteil, New York (Ephrem J. Wertenteil of counsel), for appellant. Gold Benes, LLP, Bellmore (James F. Stewart of counsel), for respondent.
Law Office of Ephrem J. Wertenteil, New York (Ephrem J. Wertenteil of counsel), for appellant.
Gold Benes, LLP, Bellmore (James F. Stewart of counsel), for respondent.
Friedman, J.P., Manzanet–Daniels, Kern, Moulton, JJ.
Order, Supreme Court, Bronx County (Donald A. Miles, J.), entered December 12, 2019, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
Defendant failed to establish its prima facie entitlement to summary judgment in this action where plaintiff alleges that she slipped and fell on grease as she descended the stairs in defendant's building. Defendant did not demonstrate that it lacked constructive notice of the grease as it failed to show when the stairwell was last cleaned or inspected (see Barrett v. Aero Snow Removal Corp., 167 A.D.3d 519, 520, 90 N.Y.S.3d 161 [1st Dept. 2018] ; Hill v. Manhattan N. Mgt., 164 A.D.3d 1187, 84 N.Y.S.3d 137 [1st Dept. 2018] ). Proof of a regular maintenance schedule "does not suffice for purposes of showing that it was followed" ( Gautier v. 941 Intervale Realty LLC, 108 A.D.3d 481, 481, 970 N.Y.S.2d 191 [1st Dept. 2013] ), and since the superintendent was due to clean the hallways and stairs on the day of the accident, plaintiff's observation of debris on the stairs shows that no such maintenance was done prior to her fall.
Contrary to defendant's contention, plaintiff raised the issue of constructive notice before the motion court and argued that the superintendent had not cleaned the building on the day of her accident.
Because defendant did not meet its initial burden of showing that it lacked constructive notice of the alleged defective condition as a matter of law, the burden never shifted to plaintiff to demonstrate how long the condition existed (see Sabalza v. Salgado, 85 A.D.3d 436, 438, 924 N.Y.S.2d 373 [1st Dept. 2011] ).