Opinion
2019–10365 Index No. 604926/17
06-22-2022
Judi NELSON, appellant, v. AMF BOWLING CENTERS, INC., respondent.
Kujawski & Kujawski, Deer Park, NY (Jennifer A. Spellman and Mark C. Kujawski of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Judy C. Selmeci of counsel), for respondent.
Kujawski & Kujawski, Deer Park, NY (Jennifer A. Spellman and Mark C. Kujawski of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Judy C. Selmeci of counsel), for respondent.
HECTOR D. LASALLE, P.J., SHERI S. ROMAN, LINDA CHRISTOPHER, DEBORAH A. DOWLING, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (William G. Ford, J.), dated August 5, 2019. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when her shoe or sock caught a splintered area of flooring while bowling at the defendant's bowling alley in West Babylon. In an order dated August 5, 2019, the Supreme Court granted the defendant's motion for summary judgment dismissing the complaint. The plaintiff appeals.
"In a premises liability case, a defendant landowner moving for summary judgment has the burden of establishing, prima facie, that it did not create the alleged dangerous condition or have actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied it" ( Mowla v. Baozhu Wu, 195 A.D.3d 706, 707, 145 N.Y.S.3d 368 ; see Fields v. New York City Hous. Auth., 186 A.D.3d 1330, 1330–1331, 128 N.Y.S.3d 902 ). "A defendant has constructive notice of a dangerous or defective condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it" ( Mowla v. Baozhu Wu, 195 A.D.3d at 707, 145 N.Y.S.3d 368 ; see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774 ; Vargas v. Lamberti, 186 A.D.3d 1572, 1573, 131 N.Y.S.3d 66 ). "In order to meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall" ( Campbell v. New York City Tr. Auth., 109 A.D.3d 455, 456, 970 N.Y.S.2d 284 ; see Matson v. Dermer Mgt., Inc., 200 A.D.3d 772, 155 N.Y.S.3d 98 ; Falco–Averett v. Wal–Mart Stores, Inc., 174 A.D.3d 506, 507, 101 N.Y.S.3d 642 ). " ‘When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed’ " ( Hayden v. 334 Dune Rd., LLC, 196 A.D.3d 634, 635, 152 N.Y.S.3d 450, quoting Schnell v. Fitzgerald, 95 A.D.3d 1295, 1295, 945 N.Y.S.2d 390 ; see Arevalo v. Abitabile, 148 A.D.3d 658, 660, 48 N.Y.S.3d 506 ).
Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting evidence that it did not have actual or constructive notice of the alleged dangerous condition of the flooring. The evidence submitted by the defendant established that the defect in the flooring was latent, and that the flooring had been inspected by both an employee of the defendant and another bowler prior to the accident, neither of whom noticed the defect (see Matson v. Dermer Mgt., Inc., 200 A.D.3d 772, 155 N.Y.S.3d 98 ; Arevalo v. Abitabile, 148 A.D.3d at 660, 48 N.Y.S.3d 506 ; Curiale v. Sharrotts Woods, Inc., 9 A.D.3d 473, 474–475, 781 N.Y.S.2d 47 ). In opposition, the plaintiff failed to raise a triable issue of fact.
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.
LASALLE, P.J., ROMAN, CHRISTOPHER and DOWLING, JJ., concur.