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
PRISCILLA HALL, J.P., ROBERT J. MILLER, FRANCESCA A.
CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
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.
that the order is reversed, on the law, with costs, and the
defendants' motion for summary judgment dismissing the
complaint is denied.
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.
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).
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 ...