Opinion
2021–03115 Index No. 605830/17
12-20-2023
Eleasia BLACKMAN, respondent, v. RED LOBSTER HOSPITALITY, LLC, appellant, et al., defendant.
Simmons Jannace DeLuca, Hauppauge, NY (Irina Feferman and Mary C. Azzaretto of counsel), for appellant. Eleasia Blackman, Binghamton, NY, respondent pro se.
Simmons Jannace DeLuca, Hauppauge, NY (Irina Feferman and Mary C. Azzaretto of counsel), for appellant.
Eleasia Blackman, Binghamton, NY, respondent pro se.
HECTOR D. LASALLE, P.J., ROBERT J. MILLER, LARA J. GENOVESI, LAURENCE L. LOVE, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendant Red Lobster Hospitality, LLC, appeals from an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), dated March 23, 2021. The order granted the plaintiff's motion for leave to renew her opposition to that branch of a prior motion of the defendant Red Lobster Hospitality, LLC, which was for summary judgment dismissing the complaint insofar as asserted against it, which had been granted in an order of the same court dated April 2, 2019, and, upon renewal, in effect, vacated the prior order and thereupon denied that branch of the prior motion.
ORDERED that the order dated March 23, 2021, is affirmed, with costs.
In March 2017, the plaintiff commenced this action against, among others, the defendant Red Lobster Hospitality, LLC (hereinafter the defendant), to recover damages for injuries the plaintiff allegedly sustained as a result of a slip and fall on the defendant's premises. In an order dated April 2, 2019 (hereinafter the April 2019 order), the Supreme Court granted that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it. Thereafter, the plaintiff moved for leave to renew her opposition to that branch of the defendant's motion, submitting, inter alia, a video recording depicting the wet condition of the floor in the subject premises. In an order dated March 23, 2021, the Supreme Court granted the plaintiff's motion for leave to renew and, upon renewal, in effect, vacated the April 2019 order, and thereupon denied that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it. The defendant appeals.
The Supreme Court providently exercised its discretion in granting the plaintiff's motion for leave to renew her opposition to that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it. CPLR 2221(e)(2) and (3) provides, in relevant part, that "[a] motion for leave to renew ... shall be based upon new facts not offered on the prior motion that would change the prior determination ... [and] shall contain reasonable justification for the failure to present such facts on the prior motion." " ‘[T]he requirement that a motion for leave to renew be based upon new or additional facts unknown to the movant at the time of the original motion is a flexible one and the court, in its discretion, may also grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made’ " ( Shvyetsov v. 1900 Newkirk Ave., LLC, 217 A.D.3d 704, 705–706, 191 N.Y.S.3d 113, quoting NP162, LLC v. Harding, 197 A.D.3d 479, 480, 153 N.Y.S.3d 37 [internal quotation marks omitted]). Contrary to the defendant's contention, under the circumstances of this case, the plaintiff established a reasonable justification for her failure to provide the video recording of the condition of the floor in her opposition to the original motion (see Burro v. Kang, 167 A.D.3d 694, 697, 90 N.Y.S.3d 298 ; Granato v. Waldbaum's, Inc., 289 A.D.2d 289, 734 N.Y.S.2d 498 ).
Moreover, upon renewal, the Supreme Court properly denied that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it. "Landowners generally owe a duty of care to maintain their property in a reasonably safe condition, and are liable for injuries caused by a breach of this duty" ( Henry v. Hamilton Equities, Inc., 34 N.Y.3d 136, 142, 114 N.Y.S.3d 21, 137 N.E.3d 476 ; see Morlan v. Atlantic Westerly Co., 214 A.D.3d 787, 788, 186 N.Y.S.3d 57 ). "In a slip-and-fall case, a defendant property owner moving for summary judgment has the burden of making a prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence" ( Parietti v. Wal–Mart Stores, Inc., 29 N.Y.3d 1136, 1137, 61 N.Y.S.3d 523, 83 N.E.3d 853 ; see Buestan v. Tiff Real Prop., Inc., 217 A.D.3d 745, 745, 191 N.Y.S.3d 151 ). Here, in opposition to the defendant's prima facie showing, the plaintiff raised a triable issue of fact as to whether the defendant had constructive notice of the condition that allegedly caused the plaintiff to slip and fall (see Parietti v. Wal–Mart Stores, Inc., 29 N.Y.3d at 1137, 61 N.Y.S.3d 523, 83 N.E.3d 853 ). The defendant's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the plaintiff's motion for leave to renew, and, upon renewal, properly, in effect, vacated the April 2019 order and thereupon denied that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it.
LASALLE, P.J., MILLER, GENOVESI and LOVE, JJ., concur.