Thomas E. Dow, plaintiff-respondent,
Hermes Realty, LLC, et al., appellants, Seres & Schwartz, etc., et al., defendants-respondents, et al., defendant. Index No. 254/12
Malapero & Prisco, LLP, New York, NY (Jennine A. Gerrard
of counsel), for appellants.
Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C.,
Mineola, NY (Mark R. Bernstein of counsel), for
Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola, NY
(Anthony J. Abruscati of counsel), for
WILLIAM F. MASTRO, J.P. SANDRA L. SGROI JEFFREY A. COHEN
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
defendants Hermes Realty, LLC, and 535 Realty Management
Corp. appeal, as limited by their brief, from so much of an
order of the Supreme Court, Suffolk County (Tarantino, Jr.,
J.), dated September 30, 2015, as denied those branches of
their motion which were for summary judgment dismissing the
amended complaint insofar as asserted against them and for
summary judgment on their cross claims for contractual and
common-law indemnification against the defendants Seres &
Schwartz, Paul Seres, and James D. Schwartz.
that the order is affirmed insofar as appealed from, with one
bill of costs payable to the respondents appearing separately
and filing separate briefs.
plaintiff alleges that he was injured when he slipped and
fell exiting the lobby of an office building owned by the
defendant Hermes Realty, LLC, and managed by the defendant
535 Realty Management Corp. (hereinafter together the Realty
defendants). According to the plaintiff, he slipped on water
which he observed immediately after he fell. The water was
exposed when a floor mat was removed from the area where the
plaintiff fell by the defendant Stephen Hughes who, at the
time of the plaintiff's accident, was helping the
defendant James D. Schwartz, a partner in the defendant law
firm Seres & Schwartz, to move the law firm's
furniture into the building. According to the Realty
defendants' deposition testimony, the floor in the
building lobby was scheduled to be wet mopped on the Friday
afternoon prior to the plaintiff's accident on Monday,
and the Realty defendants' maintenance personnel were
instructed, as part of their process, to remove the floor
mats in the lobby and put them back in place after the floor
was mopped dry.
plaintiff commenced this action against, among others, the
Realty defendants, alleging negligence. Following discovery,
the Realty defendants moved, inter alia, for summary judgment
dismissing the amended complaint insofar as asserted against
them and on their cross claims for contractual and common-law
indemnification against the defendants Seres & Schwartz,
Paul Seres, and James D. Schwartz (hereinafter collectively
the Schwartz defendants), which the Supreme Court denied in
its entirety. The Realty defendants appeal.
landowner has a duty to maintain his or her premises in a
reasonably safe condition (see Basso v. Miller, 40
N.Y.2d 233, 241; Egan v. Emerson Assoc., LLC, 127
A.D.3d 806, 806). "To impose liability on a defendant
for a slip and fall on an alleged dangerous condition on a
floor, there must be evidence that the dangerous condition
existed, and that the defendant either created the condition
or had actual or constructive notice of it and failed to
remedy it within a reasonable time" (Moody v.
Woolworth Co., 288 A.D.2d 446, 446; see Egan v.
Emerson Assoc., LLC, 127 A.D.3d at 806).
defendant property owner who moves for summary judgment in a
slip-and-fall case has the initial burden of making a prima
facie showing that it neither created the alleged hazardous
condition nor had actual or constructive notice of it
(see Behrens v. North Merrick Fruits, Inc., 148
A.D.3d 972, 973; Warren v. Walmart Stores, Inc., 105
A.D.3d 732, 733).
the Realty defendants failed to eliminate all triable issues
of fact as to whether the alleged accumulation of water on
which the plaintiff slipped and fell was created by its
maintenance personnel prior to the accident (see Alvarez
v. Prospect Hosp., 68 N.Y.2d 320, 324; Winegrad v.
New York Univ. Med. Ctr., 64 N.Y.2d 851, 853;
Zuckerman v. City of New York, 49 N.Y.2d 557, 562).
Since the Realty defendants failed to establish their prima
facie entitlement to judgment as a matter of law, the Supreme
Court properly denied that branch of their motion which was
for summary judgment dismissing the amended complaint insofar
as asserted against them, regardless of the sufficiency of
the plaintiff's opposition papers (see Alvarez v.
Prospect Hosp., 68 N.Y.2d at 324; Winegrad v. New
York Univ. Med. Ctr., 64 N.Y.2d at 853).
Supreme Court also properly denied those branches of the
Realty defendants' motion which were for summary judgment
on its cross claims for contractual and common-law
indemnification against the Schwartz defendants, since the
Realty defendants did not establish that they were free from
negligence in the happening of the plaintiff's accident
(see Bleich v. Metropolitan Mgt., LLC, 132 A.D.3d
933, 934; Sellitti v. TJX Cos., Inc., 127 A.D.3d
Realty defendants' remaining ...