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Livingston v. Better Medical Health, P.C.

Supreme Court of New York, Second Department

April 26, 2017

Henrietta Livingston, appellant,
v.
Better Medical Health, P.C., et al., respondents. Index No. 15228/12

          Arze & Mollica, LLP, Brooklyn, NY (Raymond J. Mollica 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.

          REINALDO E. RIVERA, J.P., RUTH C. BALKIN, BETSY BARROS, 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 (Silber, J.), entered January 6, 2016, which granted the defendants' motion for an extension of time to move for summary judgment, and thereupon, for summary judgment dismissing the amended complaint.

         ORDERED that the order is affirmed, with costs.

         The plaintiff alleged that after she had undergone an MRI in the office of the defendant Better Medical Health, P.C., in Brooklyn, she was walking back toward the changing room when, as she turned left, the carpet runner on the floor of the office hallway moved, causing her to fall and sustain injuries. The plaintiff commenced this action to recover damages for personal injuries against the defendants Better Medical Health, P.C., and Omega Administrative Services, LLC, who, at the time, were leasing the office where the subject accident occurred. During the pendency of the action, the defendants moved for leave to file an extension of time to move for summary judgment, and thereupon, for summary judgment dismissing the amended complaint. The plaintiff opposed the motion. The Supreme Court granted the defendants' motion, and the plaintiff appeals.

         Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in granting that branch of the defendants' motion which was for an extension of time to move for summary judgment. The defendants established good cause for the delay (see CPLR 3212[a]; Brill v City of New York, 2 N.Y.3d 648, 652).

         Furthermore, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the amended complaint. "An owner or tenant in possession of realty owes a duty to maintain the property in a reasonably safe condition" (Farrar v Teicholz, 173 A.D.2d 674, 676; see Boudreau-Grillo v Ramirez, 74 A.D.3d 1265; Cupo v Karfunkel, 1 A.D.3d 48, 51; Millman v Citibank, 216 A.D.2d 278; see also Mavis v Rexcorp Realty, LLC., 143 A.D.3d 678). In this case, to impose liability upon the defendants for the plaintiff's fall, there must be evidence that a dangerous or defective condition existed, and that the defendants had actual or constructive notice of the condition and failed to remedy it within a reasonable time (see Fernandez v Bucknell Realty Ltd. Partnership, 123 A.D.3d 972, 972; Drago v DeLuccio, 79 A.D.3d 966). Thus, "a defendant moving for summary judgment in a slip-and-fall action 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" (Fernandez v Bucknell Realty Ltd. Partnership, 123 A.D.3d at 972; see Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837; Altinel v John's Farms, 113 A.D.3d 709; Petersel v Good Samaritan Hosp. of Suffern, 99 A.D.3d 880).

         Here, the evidence submitted in support of that branch of the defendants' motion which was for summary judgment dismissing the amended complaint was sufficient to establish their prima facie entitlement to judgment as a matter of law. The evidence demonstrated that the defendants did not create a dangerous or defective condition with respect to the carpet runner, and did not have actual or constructive notice of any such condition with respect to the carpet runner prior to the subject accident (see Leary v Glen Home Owners Assn., Inc., 82 A.D.3d 1169). In opposition to the defendants' prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether the carpet runner was in a dangerous or defective condition prior to her fall and, if so, whether the defendant created such condition or had actual or constructive notice of it.

         Accordingly, the Supreme Court properly granted the ...


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