& Dean, PLLC (Mischel & Horn, P.C., New York, NY
[Scott T. Horn and Lauren E. Bryan], of counsel), for
& Branch, LLP, New York, NY (Tanya M. Branch and Mary
Ellen O'Brien of counsel), for respondents.
LEONARD B. AUSTIN, J.P. SHERI S. ROMAN JEFFREY A. COHEN BETSY
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals from an order of the Supreme Court, Kings
County (Kathy J. King, J.), dated May 17, 2017. The order
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.
August 7, 2011, the plaintiff, a resident of an apartment
building in Brooklyn (hereinafter the premises), allegedly
was injured when he slipped on a puddle of what was alleged
to be urine while descending an interior staircase of the
premises. The premises is owned and operated by the
defendants. The plaintiff alleged that while descending the
stairs, he held onto the handrail, which was partially
detached from the wall. The plaintiff alleged that as he
slipped he tightened his grip on the handrail, which shifted
down four to five inches, causing him to lose his balance.
plaintiff subsequently commenced this action against the
defendants. After discovery was completed, the defendants
moved for summary judgment dismissing the complaint,
contending that they did not create or have notice of the
condition that allegedly caused the plaintiff's injuries,
that the record demonstrated that the handrail was not
disconnected, and, in any event, the plaintiff's
testimony at his deposition did not implicate the handrail as
a cause of his accident. The plaintiff opposed the motion.
The Supreme Court granted defendant's motion, and the
defendant moving for summary judgment in a slip-and-fall case
has the initial burden of establishing that it did not create
the alleged dangerous or defective condition or have either
actual or constructive notice of its existence for a
sufficient length of time to discovery and remedy it"
(Gairy v 3900 Harper Ave. LLC, 146 A.D.3d 938, 938;
see Perez v Wendell Terrace Owners Corp., 150 A.D.3d
1162, 1163; Kane v Peter M. Moore Constr. Co., Inc.,
145 A.D.3d 864). Only after a defendant satisfies this burden
will the sufficiency of a plaintiff's opposition be
examined (see Birnbaum v New York Racing Assn.,
Inc., 57 A.D.3d 598).
its prima facie burden on the issue of constructive notice, a
defendant moving for summary judgment must offer evidence as
to when the area at issue was last cleaned or inspected
before the accident (see Hanney v White Plains Galleria,
LP, 157 A.D.3d 660, 661; Rong Wen Wu v
Arniotes, 149 A.D.3d 786, 787; Kravets v New York
City Hous. Auth., 134 A.D.3d 678). "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" (Rong Wen Wu v Arniotes, 149 A.D.3d
at 787; see Eksarko v Associated Supermarket, 155
A.D.3d 826, 827; Mahoney v AMC Entertainment, Inc.,
103 A.D.3d 855, 856).
the defendants failed to establish, prima facie, that they
did not have constructive notice of the alleged hazardous
conditions. While the deposition testimony of the
premises' porter and an affidavit of its superintendent,
submitted by the defendants in support of their motion,
demonstrated that the porter and the superintendent inspected
and cleaned the premises on a regular basis, the defendants
failed to present evidence of when the specific area where
the plaintiff fell was last cleaned or inspected before the
accident (see Eksarko v Associated Supermarket, 155
A.D.3d at 827; Perez v Wendell Terrace Owners Corp.,
150 A.D.3d at 1163). Furthermore, the defendants failed to
demonstrate, prima facie, that the handrail was not
defendants' remaining contention is without merit.
the Supreme Court should have denied the defendants'
motion for summary judgment dismissing the complaint,
regardless of the sufficiency of the plaintiff's
opposition papers (se ...