Cellino & Barnes, P.C., Garden City, NY (John E. Lavelle
of counsel), for appellant.
Chesney & Nicholas, LLP, Syosset, NY (John F. Janowski of
counsel), for respondents.
M. LEVENTHAL, J.P. L. PRISCILLA HALL SYLVIA O. HINDS-RADIX
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals from an order of the Supreme Court, Nassau
County (Cozzens, Jr., J.), entered March 30, 2016, 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.
plaintiff allegedly was injured when she slipped and fell on
a wet floor in the card aisle of the defendants' store.
The plaintiff subsequently commenced this action against the
defendants, alleging that the hazardous condition on the
floor had been caused by water and ice tracked in from a
recent snow storm. After depositions had been conducted, the
defendants moved for summary judgment dismissing the
complaint, contending that they did not create the alleged
hazardous condition that caused the plaintiff to fall, or
have actual or constructive notice of the condition. The
Supreme Court granted the motion, and we reverse.
defendant who moves for summary judgment in a slip-and-fall
case has the initial burden of making a prima facie showing
that it did not create the hazardous condition which
allegedly caused the fall, and did not have actual or
constructive notice of that condition for a sufficient length
of time to discover and remedy it (see Jeremias v Lake
Forest Estates, 147 A.D.3d 742; Sesina v Joy Lea
Realty, LLC, 123 A.D.3d 1000, 1001; Altinel v
John's Farms, 113 A.D.3d 709, 710). While a
defendant is not required to cover all of its floors with
mats, or to continuously mop up all moisture resulting from
tracked-in rain (see Milorava v Lord & Taylor
Holdings, LLC, 133 A.D.3d 724, 725; Jordan v
Juncalito Abajo Meat Corp., 131 A.D.3d 1012; Paduano
v 686 Forest Ave., LLC, 119 A.D.3d 845; Negron v St.
Patrick's Nursing Home, 248 A.D.2d 687), a defendant
may be held liable for an injury proximately caused by a
dangerous condition created by water, snow, or ice tracked
into a building if it either created the hazardous condition,
or had actual or constructive notice of the condition and a
reasonable time to undertake remedial action (see Jordan
v Juncalito Abajo Meat Corp., 131 A.D.3d at 1012;
Mentasi v Eckerd Drugs, 61 A.D.3d 650, 651; Ruic
v Roman Catholic Diocese of Rockville Ctr., 51 A.D.3d
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 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 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
Rogers v Bloomingdale's, Inc., 117 A.D.3d 933).
the evidence submitted by the defendants in support of their
motion, including transcripts of the deposition testimony of
the plaintiff and of the manager of the store at the time of
the accident, was insufficient to establish, prima facie,
that they did not have constructive notice of the alleged
condition that allegedly caused the plaintiff to fall. The
store manager stated that the store, which was open 24 hours
a day, did not have set times when inspections were
conducted, and that he did not know the last time that the
card aisle had been inspected prior to the incident or what
it looked like within a reasonable time prior to the
incident. Under the circumstances, viewing the evidence in
the light most favorable to the plaintiff, the defendants
failed to establish, prima facie, that the condition that
allegedly caused the plaintiff to fall was not visible and
apparent and that it had not been there for a sufficient
period of time for the defendants to have discovered and
remedied it (see Gordon v American Museum of Natural
History, 67 N.Y.2d at 837-838; Jeremias v Lake
Forest Estates, 147 A.D.3d 742; Milorava v Lord
& Taylor Holdings, LLC, 133 A.D.3d at 725-726;
Mahoney v AMC Entertainment, Inc., 103 A.D.3d 855,
856; Oliveri v Vassar Bros. Hosp., 95 A.D.3d 973,
the Supreme Court should have denied the defendants'
motion for summary judgment dismissing the complaint without
regard to the sufficiency of the plaintiff's opposition
papers (s ...