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Sharon Reid v. the Gap

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


April 26, 2011

SHARON REID,
RESPONDENT,
v.
THE GAP, INC.,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 5, 2010.

Reid v Gap, Inc.

Decided on April 26, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., WESTON and GOLIA, JJ.

The order denied defendant's motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this personal injury action, plaintiff alleges that she slipped on a clear liquid while descending the stairs of defendant's store. Defendant moved for summary judgment dismissing the complaint on the ground that it had neither created the condition nor had actual or constructive notice of the condition. The Civil Court denied the motion.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). "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 hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it" (Rodriguez v White Plains Pub. Schools, 35 AD3d 704, 705 [2006]; see also Goldman v Waldbaum, Inc., 248 AD2d 436 [1998]).

In order to meet its initial burden on the issue of lack of constructive notice, defendant was required to offer some evidence as to when the area in question had last been cleaned or inspected relative to the time when plaintiff had fallen (see Bruk v Razag, Inc., 60 AD3d 715 [2009]; Porco v Marshalls Dept. Stores, 30 AD3d 284 [2006]; Feldmus v Ryan Food Corp., 29 AD3d 940 [2006]; Yioves v T.J. Maxx, Inc., 29 AD3d 572 [2006]). In support of its motion, defendant submitted the deposition testimony of a former employee at the subject store, who stated that he had not been present in the store on the date of the alleged accident and had no personal knowledge as to what had transpired on that date. Indeed, he testified that he did not know whether the store maintenance procedures which he had described at his deposition had even been followed on that date.

In view of the fact that defendant failed to satisfy its initial burden, the Civil Court properly denied its motion for summary judgment. It is, therefore, unnecessary to consider defendant's arguments regarding the sufficiency of plaintiff's opposition papers (see Winegrad, 64 NY2d at 853). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Golia, JJ., concur.

Decision Date: April 26, 2011

20110426

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