Opinion
2013-05-1
Joseph WILLIS, appellant, v. GALILEO CORTLANDT, LLC, et al., respondents, et al., defendants.
Worby Groner Edelman LLP, White Plains, N.Y. (Michael G. Del Vecchio and Richard S. Vecchio of counsel), for appellant. Harrington, Ocko & Monk, White Plains, N.Y. (Dawn M. Foster of counsel), for respondents Galileo Cortlandt, LLC, and Centro GA Cortlandt, LLC.
Worby Groner Edelman LLP, White Plains, N.Y. (Michael G. Del Vecchio and Richard S. Vecchio of counsel), for appellant. Harrington, Ocko & Monk, White Plains, N.Y. (Dawn M. Foster of counsel), for respondents Galileo Cortlandt, LLC, and Centro GA Cortlandt, LLC.
Leahey & Johnson, P.C., New York, N.Y. (Peter James Johnson, Jr., James P. Tenney, and Joanne Filiberti of counsel), for respondents Barnes & Noble Superstores, Inc., Barnes & Noble, Inc., and Barnes & Noble Booksellers, Inc.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Colabella, J.), entered March 7, 2012, as granted those branches of the separate motions of the defendants Galileo Cortlandt, LLC, and Centro GA Cortlandt, LLC, and the defendants Barnes & Noble Superstores, Inc., Barnes & Noble, Inc., and Barnes & Noble Booksellers, Inc., which were for summary judgment dismissing the complaint insofar as asserted against each of them.
ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and those branches of the separate motions of the defendants Galileo Cortlandt, LLC, and Centro GA Cortlandt, LLC, and the defendants Barnes & Noble Superstores, Inc., Barnes & Noble, Inc., and Barnes & Noble Booksellers, Inc., which were for summary judgment dismissing the complaint insofar as asserted against each of them are denied.
The plaintiff, a security guard, allegedly was injured during the course of his employment when his foot became entangled in debris and he fell from an elevated loading dock. He subsequently commenced this action against, among others, the owners of the subject property, Galileo Cortlandt, LLC, and Centro GA Cortlandt, LLC (hereinafter together the Cortlandt defendants), and the tenants of the property, Barnes & Noble Superstores, Inc., Barnes & Noble, Inc., and Barnes & Noble Booksellers, Inc. (hereinafter collectively the Barnes & Noble defendants). After discovery, the Cortlandt defendants and the Barnes & Noble defendants separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court granted those branches of the motions, and the plaintiff appeals.
Initially, while certain deposition transcripts submitted by the Cortlandt defendants and the Barnes & Noble defendants in support of their respective motions were unsigned, the transcripts were certified and the plaintiff did not raise any challenges to their accuracy. Thus, contrary to the plaintiff's contention, those deposition transcripts qualified as admissible evidence for the purposes of the motions ( seeCPLR 3116[a], [b]; Rodriguez v. Ryder Truck, Inc., 91 A.D.3d 935, 936, 937 N.Y.S.2d 602;Zalot v. Zieba, 81 A.D.3d 935, 936, 917 N.Y.S.2d 285).
“A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the alleged hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” ( Halpern v. Costco Warehouse/Costco Wholesale, 95 A.D.3d 828, 828, 943 N.Y.S.2d 567;see Kokin v. Key Food Supermarket, Inc., 90 A.D.3d 850, 935 N.Y.S.2d 66;Amendola v. City of New York, 89 A.D.3d 775, 932 N.Y.S.2d 172;Lee v. Port Chester Costco Wholesale, 82 A.D.3d 842, 918 N.Y.S.2d 549). A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it ( see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774). In addition, a defendant who has actual knowledge of a particular ongoing and recurring hazardous condition may be charged with constructive notice of each specific reoccurrence of that condition ( see Amendola v. City of New York, 89 A.D.3d at 775–776, 932 N.Y.S.2d 172; Milano v. Staten Is. Univ. Hosp., 73 A.D.3d 1141, 903 N.Y.S.2d 78).
Here, the Cortlandt defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence that they neither created the condition that allegedly caused the plaintiff's accident, nor had actual or constructive notice of that condition ( see Knack v. Red Lobster 286, N & D Rests., Inc., 98 A.D.3d 473, 473–474, 949 N.Y.S.2d 205;Pollina v. Oakland's Rest., Inc., 95 A.D.3d 1190, 945 N.Y.S.2d 134;Cusack v. Peter Luger, Inc., 77 A.D.3d 785, 786, 909 N.Y.S.2d 532;Steisel v. Golden Reef Diner, 67 A.D.3d 670, 671, 888 N.Y.S.2d 150;DeLeon v. Westhab, Inc., 60 A.D.3d 888, 875 N.Y.S.2d 589;Malenda v. Great Atl. & Pac. Tea Co., Inc., 50 A.D.3d 972, 972–973, 855 N.Y.S.2d 683;Pomerantz v. Culinary Inst. of Am., 2 A.D.3d 821, 770 N.Y.S.2d 424;Gloria v. MGM Emerald Enters., 298 A.D.2d 355, 751 N.Y.S.2d 213). However, in opposition to the motion, the plaintiff submitted evidence sufficient to raise a triable issue of fact as to whether the Cortlandt defendants can be charged with constructive notice on the theory that they were aware of a particular recurring condition in the area where the accident occurred which they failed to adequately address ( see Halpern v. Costco Warehouse/Costco Wholesale, 95 A.D.3d at 828–829, 943 N.Y.S.2d 567;Black v. Kohl's Dept. Stores, Inc., 80 A.D.3d 958, 960–961, 914 N.Y.S.2d 469;Milano v. Staten Is. Univ. Hosp., 73 A.D.3d at 1142, 903 N.Y.S.2d 78;Lehr v. Mothers Work, Inc., 73 A.D.3d 564, 903 N.Y.S.2d 345;Erikson v. J.I.B. Realty Corp., 12 A.D.3d 344, 345–346, 783 N.Y.S.2d 661;cf. Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 646 N.E.2d 795;DeJesus v. New York City Hous. Auth., 53 A.D.3d 410, 411, 861 N.Y.S.2d 31,affd.11 N.Y.3d 889, 873 N.Y.S.2d 259, 901 N.E.2d 752;Gloria v. MGM Emerald Enters., 298 A.D.2d at 356, 751 N.Y.S.2d 213). Therefore, the Supreme Court erred in granting that branch of the motion of the Cortlandt defendants which was for summary judgment dismissing the complaint insofar as asserted against them.
Further, contrary to the Supreme Court's determination, the Barnes & Noble defendants failed to tender evidence sufficient to establish, prima facie, that their employees did not create the allegedly dangerous condition that caused the plaintiff to fall ( see Molloy v. Waldbaum, Inc., 72 A.D.3d 659, 897 N.Y.S.2d 653;Tenkate v. Tops Mkts., LLC, 38 A.D.3d 987, 988–989, 831 N.Y.S.2d 565). Therefore, the Supreme Court should have denied that branch of the motion of the Barnes & Noble defendants which was for summary judgment dismissing the complaint insofar as asserted against them, regardless of the sufficiency of the plaintiff's opposing papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 852, 487 N.Y.S.2d 316, 476 N.E.2d 642;Johnson v. Culinary Inst. of Am., 95 A.D.3d 1077, 1079, 944 N.Y.S.2d 307).