Opinion
No. 2022-02413 Index No. 21720/15
04-24-2024
Anita Venezia Rogers, appellant, v. Stop & Shop Supermarket Company, LLC, etc., respondent.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant. Creedon & Gill P.C., Northport, NY (Peter J. Creedon of counsel), for respondent.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.
Creedon & Gill P.C., Northport, NY (Peter J. Creedon of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P. PAUL WOOTEN WILLIAM G. FORD LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Marian Rose Tinari, J.), entered February 24, 2022. The judgment, upon (1) an order of the same court dated May 14, 2020, granting the defendant's motion for summary judgment dismissing the complaint; and (2) an order of the same court dated April 7, 2021, denying the plaintiff's motion for leave to reargue her opposition to the defendant's motion for summary judgment dismissing the complaint, is in favor of the defendant and against the plaintiff dismissing the complaint.
ORDERED that the judgment is affirmed, with costs.
In August 2015, the plaintiff allegedly was injured when she slipped and fell on a puddle in the dairy section of a supermarket owned and operated by the defendant. Thereafter, the plaintiff commenced this personal injury action.
The defendant subsequently moved for summary judgment dismissing the complaint, contending, inter alia, that it did not create or have actual or constructive notice of any dangerous condition on its premises. The plaintiff opposed the defendant's motion. In an order dated May 14, 2020, the Supreme Court granted the defendant's motion for summary judgment dismissing the complaint.
In January 2021, the plaintiff moved for leave to reargue her opposition to the defendant's motion for summary judgment dismissing the complaint. In an order dated April 7, 2021, the Supreme Court denied the plaintiff's motion. On February 24, 2022, the court entered a judgment in favor of the defendant and against the plaintiff dismissing the complaint. The plaintiff appeals.
Generally, an appeal from a final judgment brings up for review "any non-final judgment or order which necessarily affects the final judgment" (CPLR 5501[a][1]). However, since no appeal lies from an order denying reargument, the April 7, 2021 order denying the plaintiff's motion for leave to reargue her opposition to the defendant's motion for summary judgment dismissing the complaint is not brought up for review (see Brightside Home Improvements, Inc. v Northeast Home Improvement Servs., 208 A.D.3d 446, 448; Wilmington Sav. Fund Socy., FSB v Matamoro, 200 A.D.3d 79, 94).
The Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint. The owner or possessor of property has a duty to maintain its property "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Basso v Miller, 40 N.Y.2d 233, 241 [internal quotation marks omitted]). "A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it" (Mehta v Stop & Shop Supermarket Co., LLC, 129 A.D.3d 1037, 1038; see Cashwell v Stop & Shop Supermarket Co., LLC, 219 A.D.3d 795, 796; Arevalo v Associated Supermarkets, Inc., 156 A.D.3d 852, 853). 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" (Falco-Averett v Wal-Mart Stores, Inc., 174 A.D.3d 506, 507 [internal quotation marks omitted]; see Mehta v Stop & Shop Supermarket Co., LLC, 129 A.D.3d at 1038; Armijos v Vrettos Realty Corp., 106 A.D.3d 847, 847).
Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating, through video evidence, and the deposition testimony and an affidavit of its employee who inspected the area less than nine minutes before the plaintiff fell, that it did not create or have actual or constructive notice of the alleged dangerous condition (see Milazzo v Best Mkt., 207 A.D.3d 535, 537; Mehta v Stop & Shop Supermarket Co., LLC, 129 A.D.3d at 1038). In opposition, the plaintiff failed to raise a triable issue of fact, as to, among other things, whether the employee adequately inspected the area of the accident, as such contention was based on mere speculation and conjecture (see Bradley v U.S. Brownsville III Hous. Dev. Fund Corp., 213 A.D.3d 902, 904; Seung Chul Na v JP Morgan Chase & Co., 123 A.D.3d 903, 904).
CONNOLLY, J.P., WOOTEN, FORD and VENTURA, JJ., concur.