Opinion
2014-06-18
Immacula LAMOUR, appellant, v. Gertha DECIMUS, respondent.
Rommel Daniel, New York, N.Y. (Alex Rybakov of counsel), for appellant. Harris, King & Fodera, New York, N.Y. (Laura R. Cohen of counsel), for respondent.
Rommel Daniel, New York, N.Y. (Alex Rybakov of counsel), for appellant. Harris, King & Fodera, New York, N.Y. (Laura R. Cohen of counsel), for respondent.
THOMAS A. DICKERSON, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated July 18, 2012, 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.
The plaintiff rented a second floor apartment from the defendant. The plaintiff alleged that she slipped and fell while descending a wooden staircase leading down from the second floor. The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint.
In a slip-and-fall case, a defendant can establish its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff did not know what caused the fall ( see Thompson v. Commack Multiplex Cinemas, 83 A.D.3d 929, 930, 921 N.Y.S.2d 304). In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in favor of the nonmoving party ( see Giraldo v. Twins Ambulette Serv., Inc., 96 A.D.3d 903, 946 N.Y.S.2d 871;Boyd v. Rome Realty Leasing Ltd., Partnership, 21 A.D.3d 920, 921, 801 N.Y.S.2d 340).
In support of her motion, the defendant submitted a transcript of the plaintiff's deposition, at which the plaintiff testified that her right foot slipped on something wet as she was descending the wooden staircase. Thus, the defendant failed to establish her prima facie entitlement to judgment as a matter of law on the issue of the cause of the accident ( cf. Douse v. City of New York, 70 A.D.3d 764, 895 N.Y.S.2d 457;Cangro v. Noah Bldrs. Inc., 52 A.D.3d 758, 759, 861 N.Y.S.2d 121;Zimmerman v. Yuskevich, 306 A.D.2d 403, 760 N.Y.S.2d 882;Hartman v. Mountain Val. Brew Pub., 301 A.D.2d 570, 754 N.Y.S.2d 31;Smith v. Wisch, 77 A.D.2d 619, 430 N.Y.S.2d 115).
In a slip-and-fall 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 Levine v. Amverserve Assn., Inc., 92 A.D.3d 728, 729, 938 N.Y.S.2d 593;Pryzywalny v. New York City Tr. Auth., 69 A.D.3d 598, 599, 892 N.Y.S.2d 181;Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 869 N.Y.S.2d 222). While the defendant met her initial burden of making a prima facie showing that she did not create the condition and lacked actual notice of the wet spot, “[t]o meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” ( Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d at 598–599, 869 N.Y.S.2d 222;see Levine v. Amverserve Assn., Inc., 92 A.D.3d at 729, 938 N.Y.S.2d 593;Pryzywalny v. New York City Tr. Auth., 69 A.D.3d at 599, 892 N.Y.S.2d 181). Here, the defendant introduced no evidence as to when she had last cleaned or inspected the staircase relative to the time the plaintiff fell. She did not know when she last inspected the property before the subject accident on December 24, 2007. Thus, the defendant did not establish, prima facie, that she lacked constructive notice of the alleged wet condition in the stairway ( see Alston v. Starrett City Assoc., 72 A.D.3d 711, 898 N.Y.S.2d 859;see also Mahoney v. AMC Entertainment, Inc., 103 A.D.3d 855, 856, 959 N.Y.S.2d 752).
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint, without regard to 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).