Opinion
10-04-2016
Natividad ROSARIO, Plaintiff–Respondent–Appellant, v. PRANA NINE PROPERTIES, LLC, et al., Defendants–Appellants–Respondents.
Lewis Brisbois Bisgaard & Smith, LLP, New York (Meredith Drucker Nolen of counsel), for appellants-respondents. Asta & Associates, P.C., New York (Michael J. Asta of counsel), for respondent-appellant.
Lewis Brisbois Bisgaard & Smith, LLP, New York (Meredith Drucker Nolen of counsel), for appellants-respondents.
Asta & Associates, P.C., New York (Michael J. Asta of counsel), for respondent-appellant.
TOM, J.P., SWEENY, ANDRIAS, WEBBER, GESMER, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about September 23, 2015, which granted in part and denied in part defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant the motion in its entirety, and as so modified, affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint.
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 neither created nor had actual or constructive notice of the unsafe condition. Once that showing is made, the burden shifts to plaintiff to raise a triable issue of fact as to the creation of the defect or notice of it (see Kalish v. HEI Hospitality, LLC, 114 A.D.3d 444, 445, 980 N.Y.S.2d 80 [1st Dept.2014] ).
A landowner's duty to take reasonable measures to remedy a dangerous condition caused by a storm is suspended while the storm is in progress and does not commence until a reasonable time after the storm has ended (Sherman v. New York State Thruway Auth., 27 N.Y.3d 1019, 1020–1021, 32 N.Y.S.3d 568, 52 N.E.3d 231 [2016] ; Solazzo v. New York Tr. Auth., 6 N.Y.3d 734, 735, 810 N.Y.S.2d 121, 843 N.E.2d 748 [2005] ).
Here, plaintiff testified that ten or fifteen minutes before her first accident, she saw that it was snowing. Thus, any issue concerning whether defendants made reasonable efforts to remedy the wet condition on the steps of the entry vestibule was beside the point since they had no duty to correct the ongoing problem of pedestrians tracking water into the vestibule, until a reasonable time after the storm ended (see Richardson v. S.I.K. Assoc., L.P., 102 A.D.3d 554, 958 N.Y.S.2d 144 [1st Dept.2013] ; Keum Choi v. Olympia & York Water St. Co., 278 A.D.2d 106, 107, 718 N.Y.S.2d 42 [1st Dept.2000] ).
With respect to plaintiff's second accident in the building, the court properly concluded that defendants demonstrated prima facie the absence of actual or constructive knowledge of urine on the second floor platform based on the testimony of the superintendent that he inspected daily, mopped three times a week, and swept the stairs every day. Plaintiff also testified that she did not see the urine on the afternoon before her 6:30 p.m. or 7 p.m. accident, and was unaware of any complaints of a recurring moisture condition on the platform (see Warner v. Continuum Health Care Partners, Inc., 99 A.D.3d 636, 637, 953 N.Y.S.2d 187 [1st Dept.2012] ).