Opinion
14068 Index No. 160716/15 Case No. 2020-03852
06-17-2021
Nancy CASTILLO–SAYRE et al., Plaintiffs–Respondents, v. CITARELLA OPERATING LLC, Defendant–Appellant.
Weber Gallagher Simpson Stapleton Fires & Newby, LLP, New York (Robert A. Suarez of counsel), for appellant. Jacoby & Meyers, LLP, Newburgh (James W. Shuttleworth, III of counsel), for respondents.
Weber Gallagher Simpson Stapleton Fires & Newby, LLP, New York (Robert A. Suarez of counsel), for appellant.
Jacoby & Meyers, LLP, Newburgh (James W. Shuttleworth, III of counsel), for respondents.
Acosta, P.J., Webber, Mazzarelli, Kennedy, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered July 28, 2020, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant failed to establish prima facie that it lacked actual or constructive notice of the "fish guts" on the sidewalk adjacent to its market (see Velocci v. Stop & Shop, 188 A.D.3d 436, 439, 133 N.Y.S.3d 569 [1st Dept. 2020] ; Pfeuffer v. New York City Hous. Auth., 93 A.D.3d 470, 471–472, 940 N.Y.S.2d 566 [1st Dept. 2012] ). Defendant's burden as movant was not satisfied by its merely pointing to perceived gaps in plaintiffs' proof (see Vazquez v. 3M Co., 177 A.D.3d 428, 429, 113 N.Y.S.3d 41 [1st Dept. 2019] ; Koulermos v. A.O. Smith Water Prods., 137 A.D.3d 575, 27 N.Y.S.3d 157 [1st Dept. 2016] ).
As to actual notice, defendant's sole witness had no independent knowledge of working on the day of the accident and failed to testify as to an absence of complaints about the sidewalk preceding the accident (see Frederick v. New York City Hous. Auth., 172 A.D.3d 545, 545, 100 N.Y.S.3d 258 [1st Dept. 2019] ).
As to constructive notice, the store manager's testimony as to defendant's typical course of conduct in maintaining its garbage and the sidewalk where plaintiff Castillo–Sayre fell was insufficient, since the manager was unable to say when the area was last cleaned or inspected, and defendants submitted no records or cleaning logs (see Ross v. Betty G. Reader Revocable Trust, 86 A.D.3d 419, 421, 927 N.Y.S.2d 49 [1st Dept. 2011] ; Grossman v. TCR, 142 A.D.3d 854, 856, 37 N.Y.S.3d 514 [1st Dept. 2016], appeal dismissed 28 N.Y.3d 1110, 45 N.Y.S.3d 353, 68 N.E.3d 78 [2016] ). Nor was a lack of constructive notice established by plaintiff Castillo–Sayre's failure to see the alleged condition before she fell, since there is no evidence in the record that the condition was not visible (see Barrett v. Aero Snow Removal Corp., 167 A.D.3d 519, 520, 90 N.Y.S.3d 161 [1st Dept. 2018] ).
Since defendant failed to make its prima facie showing, the burden never shifted to plaintiffs to establish the length of time that the fish guts were on the sidewalk (see Hill v. Manhattan N. Mgt., 164 A.D.3d 1187, 1187, 84 N.Y.S.3d 137 [1st Dept. 2018] ).