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Wu v. Arniotes

Supreme Court of New York, Second Department

April 5, 2017

Rong Wen Wu, appellant,
v.
Marc. Arniotes, et al., respondents (and a third-party action). Index No. 5458/11

          Morelli Law Firm, PLLC, New York, NY (David L. Sobiloff and Sara A. Strickland of counsel), for appellant.

          Gladstein Keane & Partners, PLLC, New York, NY (Thomas F. Keane, Anthony J. Spiga, and Jan B. Rothman of counsel), for respondents.

          L. PRISCILLA HALL, J.P., ROBERT J. MILLER, FRANCESCA A. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jimenez-Salta, J.), dated October 5, 2015, which granted the defendants' motion for summary judgment dismissing the complaint.

         ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

         On January 11, 2011, the plaintiff allegedly slipped and fell due to an ice condition on the sidewalk adjacent to property located in Brooklyn. At the time of the subject accident, the defendants owned the property at abutting the sidewalk where the accident occurred. After the plaintiff commenced this action against the defendants to recover damages for personal injuries, the defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiff appeals.

         A real property owner or a party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the allegedly dangerous condition or had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Smith v New York City Hous. Auth., 124 A.D.3d 625; Heck v Regula, 123 A.D.3d 665; Dhu v New York City Hous. Auth., 119 A.D.3d 728; Cruz v Rampersad, 110 A.D.3d 669; Denardo v Ziatyk, 95 A.D.3d 929, 930). A defendant has constructive notice of a defect when the defect is visible and apparent and existed for a sufficient length of time before the accident such that it could have been discovered and corrected (see Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837-838). To meet its prima facie 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 (see Heck v Regula, 123 A.D.3d at 665; Mei Xiao Guo v Quong Big Realty Corp., 81 A.D.3d 610, 611; Birnbaum v New York Racing Assn., Inc., 57 A.D.3d 598, 598-599). Reference to general cleaning practices is insufficient to establish a lack of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area in question (see Garcia-Monsalve v Wellington Leasing, L.P., 123 A.D.3d 1085; Rodriguez v Shoprite Supermarkets, Inc., 119 A.D.3d 923; Rogers v Bloomingdale's, Inc., 117 A.D.3d 933; Goodyear v Putnam/Northern Westchester Bd. of Coop. Educ. Servs., 86 A.D.3d 551; Schiano v Mijul, Inc., 79 A.D.3d 726, 726-727).

         Here, in support of their motion, the defendants failed to eliminate all triable issues of fact as to whether the snow removal efforts of the defendant Marc V. Antiones preceding the subject accident created the ice condition upon which the plaintiff allegedly fell (see Lindquist v Scarfogliero,129 A.D.3d 789; Smith v New York City Hous. Auth., 124 A.D.3d 625; Dhu v New York City Hous. Auth., 119 A.D.3d 728; Viera v Rymdzionek, 112 A.D.3d 915; Braun v Weissman, 68 A.D.3d 797). Moreover, the defendants failed to demonstrate a lack of constructive notice of the ice condition alleged. While the defendants demonstrated a lack of actual notice of the ice condition alleged, the evidence submitted in support of their motion did not show when the area of the sidewalk where the subject accident occurred was last inspected in relation to when the subject accident occurred (see Giantomaso v T. Weiss Realty Corp., 142 A.D.3d 950, 952; James v Orion Condo-350 W. 42nd St., LLC, 138 A.D.3d 927; Rogers v Bloomingdale's, Inc., 117 A.D.3d 933; Herman v Lifeplex, LLC, 106 A.D.3d 1050; Mahoney v AMC Entertainment, Inc., 103 A.D.3d 855, 856; Baines v G & D Ventures, Inc., 64 A.D.3d 528). Since the defendants did not establish their prima facie ...


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