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Mercedes v. City of New York

Supreme Court of New York, Second Department

June 12, 2013

Glenny Mercedes, appellant,
v.
City of New York, et al., respondents. Index No. 28769/08

Monaco & Monaco, LLP, Brooklyn, N.Y. (Frank A. Delle Donne of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Kathy H. Chang of counsel), for respondents.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, THOMAS A. DICKERSON, LEONARD B. AUSTIN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Kerrigan, J.), entered May 24, 2012, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants New York City Department of Education and Board of Education.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants New York City Department of Education and Board of Education is denied.

On November 13, 2007, at approximately 9:30 a.m., the plaintiff, then a 12th grade student at Grover Cleveland High School (hereinafter the High School) in Queens, allegedly slipped and fell on juice and papers situated at the top of a staircase, causing her to fall down the staircase from the first floor to the basement within the High School. The plaintiff commenced this action against the defendants City of New York (hereinafter the City), New York City Department of Education, and Board of Education (hereinafter together the BOE defendants) to recover damages for her personal injuries.

The defendants moved for summary judgment dismissing the complaint in its entirety. With respect to that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the BOE defendants, the defendants argued that the BOE defendants did not create or have actual or constructive notice of the alleged hazardous condition. In the order appealed from, the Supreme Court granted the defendants' motion in its entirety. The plaintiff appeals from so much of the order as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the BOE defendants.

"A defendant moving 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" (Petersel v Good Samaritan Hosp. of Suffern, N.Y., 99 A.D.3d 880, 880; see Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837; Willis v Galileo Cortlandt, LLC, 106 A.D.3d 730; Johnson v Culinary Inst. of Am., 95 A.D.3d 1077, 1078; Halpern v Costco Warehouse/Costco Wholesale, 95 A.D.3d 828, 828). To provide constructive notice, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 N.Y.2d at 837; see Schnell v Fitzgerald, 95 A.D.3d 1295, 1295). "To meet its initial burden on the issue of lack of constructive notice, 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" (Birnbaum v New York Racing Assn., Inc., 57 A.D.3d 598, 598-599; see Goodyear v Putnam/Northern Westchester Bd. of Coop. Educ. Servs., 86 A.D.3d 551, 552). Merely submitting testimony of general inspection or cleaning practices, and providing no evidence "regarding any particularized or specific inspection or stair-cleaning procedure in the area of the plaintiff's fall on the date of the accident" (Birnbaum v New York Racing Assn., Inc., 57 A.D.3d at 599), is "insufficient to satisfy the defendant's initial burden on the issue of lack of constructive notice" (Klerman v Fine Fare Supermarket, 96 A.D.3d 907, 908; see Santos v 786 Flatbush Food Corp., 89 A.D.3d 828, 830; Schiano v Mijul, Inc., 79 A.D.3d 726, 727). Only after a defendant has satisfied this threshold burden, will the sufficiency of the plaintiff's opposition be examined (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Joachim v 1824 Church Ave., Inc., 12 A.D.3d 409, 410).

Here, the Supreme Court improperly determined that the defendants met their initial burden with respect to that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against the BOE defendants. The deposition testimony of the High School's former custodian engineer, which merely explained his general inspection practices upon opening the High School each morning, and the High School's written work schedules of certain janitorial staff employees, failed to establish when the subject staircase was last inspected or cleaned before the plaintiff's fall. Thus, that evidence was insufficient to satisfy the defendants' initial burden of demonstrating a lack of constructive notice (see Klerman v Fine Fare Supermarket, 96 A.D.3d at 908; Santos v 786 Flatbush Food Corp., 89 A.D.3d at 830; Schiano v Mijul, Inc., 79 A.D.3d at 727; Birnbaum v New York Racing Assn., Inc., 57 A.D.3d at 599).

Accordingly, the Supreme Court erred in granting that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the BOE defendants. In light of our determination, we need not address the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d at 853; Joachim v 1824 Church Ave Inc., 12 A.D.3d at 410).

MASTRO, J.P., DILLON, DICKERSON and AUSTIN, JJ., concur.


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