Opinion
12-09-2015
Doris KORN, appellant, v. PARKSIDE HARBORS APARTMENTS, LLC, respondent.
Lucchese & D'Ammora, LLP (The Altman Law Firm, PLLC, New York, N.Y. [Michael T. Altman ], of counsel), for appellant. Burke, Conway, Loccisano & Dillon, White Plains, N.Y. (Michael G. Conway of counsel), for respondent.
Lucchese & D'Ammora, LLP (The Altman Law Firm, PLLC, New York, N.Y. [Michael T. Altman ], of counsel), for appellant.
Burke, Conway, Loccisano & Dillon, White Plains, N.Y. (Michael G. Conway of counsel), for respondent.
MARK C. DILLON, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and BETSY BARROS, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Rockland County (Berliner, J.), dated May 6, 2015, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
On August 6, 2012, the plaintiff allegedly was injured when she slipped and fell in the "garbage room" of an apartment building in which she lived. Thereafter, she commenced this action against the owner of the apartment complex. Following discovery, the defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the motion.
In a slip-and-fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall (see Cipriano v. City of New York, 120 A.D.3d 738, 738–739, 991 N.Y.S.2d 363 ; Altinel v. John's Farms, 113 A.D.3d 709, 979 N.Y.S.2d 360 ; Antelope v. Saint Aidan's Church, Inc., 110 A.D.3d 1020, 973 N.Y.S.2d 769 ; Izaguirre v. New York City Tr. Auth., 106 A.D.3d 878, 966 N.Y.S.2d 122 ). Here, the defendant failed to make a prima facie showing that the plaintiff cannot identify the cause of her fall, since the evidence that it submitted in support of its motion included the plaintiff's deposition testimony that she "felt" liquid on the floor just before she slipped.
The defendant also failed to make a prima facie showing that it was entitled to judgment as a matter of law on the ground that it did not have constructive notice of any hazardous condition. In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence (see Beri v. Chung Fat Supermarket, Inc., 125 A.D.3d 587, 587, 999 N.Y.S.2d 748 ; Minor v. 1265 Morrison, LLC, 96 A.D.3d 1024, 947 N.Y.S.2d 167 ; Alexander v. New York City Hous. Auth., 89 A.D.3d 969, 933 N.Y.S.2d 357 ; Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 869 N.Y.S.2d 222 ). Although the defendant presented evidence that it neither created, nor had actual notice of, the alleged condition, it failed to demonstrate that it did not have constructive notice of the alleged condition, as the defendant failed to tender any evidence establishing when the subject area was last inspected and cleaned prior to the accident (see Beri v. Chung Fat Supermarket, Inc., 125 A.D.3d at 587, 999 N.Y.S.2d 748 ; Williams v. New York City Hous. Auth., 119 A.D.3d 857, 990 N.Y.S.2d 549 ).
Accordingly, the defendant failed to establish its prima facie entitlement to judgment as a matter of law, and its motion for summary judgment should have been denied, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).