Opinion
2019–04257 Index No. 490/17
10-28-2020
Peter LEIBMAN, appellant, v. WATER AUTHORITY OF WESTERN NASSAU COUNTY, respondent.
Robert George Bombara, Howard Beach, NY, for appellant. Andrea G. Sawyers, Melville, N.Y. (Dominic P. Zafonte of counsel), for respondent.
Robert George Bombara, Howard Beach, NY, for appellant.
Andrea G. Sawyers, Melville, N.Y. (Dominic P. Zafonte of counsel), for respondent.
LEONARD B. AUSTIN, J.P., JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered February 19, 2019. The order 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 commenced this action against the defendant to recover damages for personal injuries that he allegedly sustained on January 29, 2016, when he fell on the exterior grounds of the defendant's premises. The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint on the grounds that the plaintiff did not know what had caused him to fall and the defendant did not have actual or constructive notice of the allegedly dangerous condition. The plaintiff appeals.
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 Bombino–Munroe v. Church of St. Bernard , 163 A.D.3d 616, 617, 80 N.Y.S.3d 429 ; Lamour v. Decimus , 118 A.D.3d 851, 851, 988 N.Y.S.2d 235 ). Here, the defendant failed to establish, prima facie, that the plaintiff did not know what had caused him to fall (see Bombino–Munroe v. Church of St. Bernard , 163 A.D.3d at 617, 80 N.Y.S.3d 429 ; Lamour v. Decimus , 118 A.D.3d at 851–852, 988 N.Y.S.2d 235, 988 N.Y.S.2d 235 ). Viewing the evidence in the light most favorable to the plaintiff, a triable issue of fact exists as to whether the plaintiff slipped and fell on a wet sidewalk with clumps of ice melt. The defendant also failed to establish, prima facie, that it neither created the alleged hazardous condition nor had actual or constructive notice of its existence (see Parietti v. Wal–Mart Stores, Inc. , 29 N.Y.3d 1136, 1137, 61 N.Y.S.3d 523, 83 N.E.3d 853 ). Since the defendant failed to meet its initial burden as the movant, it is not necessary to review 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 ).
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.
AUSTIN, J.P., MALTESE, CONNOLLY and BRATHWAITE NELSON, JJ., concur.