Opinion
CA 03-01736.
Decided March 19, 2004.
Appeal from an order of the Supreme Court, Monroe County (Harold L. Galloway, J.), entered April 25, 2003. The order granted defendant's motion for summary judgment and dismissed the amended complaint in a personal injury action.
SCHIANO LAW OFFICE, P.C., ROCHESTER (CHARLES A. SCHIANO OF COUNSEL), FOR PLAINTIFF-APPELLANT.
VOLGENAU BOSSE, LLP, BUFFALO (THOMAS W. BENDER OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, WISNER, SCUDDER, AND KEHOE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the amended complaint is reinstated.
Memorandum: Plaintiff commenced this action seeking to recover damages for injuries he sustained when he slipped and fell in a locker room "walkway" at a health club owned by defendant. According to plaintiff, the location where he fell was adjacent to the shower room and was slippery due to the accumulation of water and soap. Defendant moved for summary judgment dismissing the amended complaint, contending that no dangerous condition existed as a matter of law and, further, that it lacked either actual or constructive notice of the alleged dangerous condition. Supreme Court erred in granting defendant's motion.
Defendant met its initial burden of establishing that the water on the floor was a condition that was "necessarily incidental" to the use of the showers ( Conroy v. Saratoga Springs Auth., 259 App. Div 365, 367, affd 284 N.Y. 723; see Sciarello v. Coast Holding Co., 242 A.D. 802, affd 267 N.Y. 585; cf. Van Stry v. State of New York, 104 A.D.2d 553, 555) and thus that it did not by itself constitute a dangerous condition. We conclude, however, that plaintiff raised a triable issue of fact whether the danger presented by the water on the floor was unreasonably heightened by the presence of soap and thus whether the condition of the floor constituted an "unreasonably dangerous condition" ( Todt v. Schroon Riv. Campsite, 281 A.D.2d 782, 783; cf. Traub v. Progress Country Club, 256 A.D. 249, 250). "[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury" ( Trincere v. County of Suffolk, 90 N.Y.2d 976, 977 [internal quotation marks omitted]).
Assuming, arguendo, that a dangerous condition existed, we conclude that defendant would nevertheless be entitled to summary judgment dismissing the amended complaint upon a showing that it "neither created the dangerous condition nor had actual or constructive notice of it" ( Lane v. Burlington Coat Factory Warehouse Corp., 1 A.D.3d 907, 907; see Scott v. Marcus Whitman Cent. School Dist., 306 A.D.2d 927; Pelow v. Tri-Main Dev., 303 A.D.2d 940, 940-941). Here, defendant failed to meet its burden of establishing that it did not create the allegedly dangerous condition. Defendant improperly raised that ground for the first time in its reply papers ( see Cumpston v. Marcinkowska, 275 A.D.2d 340, 341; Canter v. East Nassau Med. Group, 270 A.D.2d 381, 382), and thus the court erred in addressing that ground. The failure of defendant to establish its entitlement to judgment as a matter of law with respect to that ground requires denial of the motion, regardless of the sufficiency of the opposing papers ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324). Plaintiff has failed to brief any issue concerning actual notice and, although his brief contains an issue heading concerning constructive notice, in the ensuing discussion of that issue he addresses only whether defendant created the dangerous condition. We therefore deem abandoned any issues with respect to notice ( see Ciesinski v. Town of Aurora, 202 A.D.2d 984).