Opinion
11841 Index 150224/15
07-16-2020
Myra RUIZ, Plaintiff–Appellant, v. STOP 1 GOURMET DELI, et al., Defendants–Respondents.
Harnick & Harnick, P.C., New York (Daniel Berke of counsel), for appellant. McMahon, Martine & Gallagher, LLP, Brooklyn (Daniel Reiser of counsel), for Stop 1 Gourmet Deli, respondent. Barry, McTiernan & Moore LLC, New York (Laurel A. Wedinger of counsel), for SHK Realty LLC, respondent.
Harnick & Harnick, P.C., New York (Daniel Berke of counsel), for appellant.
McMahon, Martine & Gallagher, LLP, Brooklyn (Daniel Reiser of counsel), for Stop 1 Gourmet Deli, respondent.
Barry, McTiernan & Moore LLC, New York (Laurel A. Wedinger of counsel), for SHK Realty LLC, respondent.
Manzanet–Daniels, J.P., Mazzarelli, Gesmer, Oing, Singh, JJ.
Order, Supreme Court, New York County (David B. Cohen, J.), entered April 3, 2019, which, to the extent appealed from as limited by the briefs, granted the cross motion of defendant Stop 1 Gourmet Deli (Stop 1) for summary judgment dismissing the complaint as against it, unanimously reversed, to deny defendant Stop 1's motion for summary judgment and reinstate the complaint as against it, without costs.
Defendant (Stop 1) did not meet its initial burden of demonstrating "that it neither created a hazardous condition, nor had actual or constructive notice of its existence" ( Smith v. Costco Wholesale Corp., 50 A.D.3d 499, 500, 856 N.Y.S.2d 573 [1st Dept. 2008] ), as it made no specific, affirmative showing that it did not have actual or constructive notice of the hazardous condition. Defendants failed to establish their prima facie entitlement to summary judgment as they "failed to offer specific evidence as to their activities on the day of the accident, including evidence indicating the last time [the area in question] was inspected, cleaned, or maintained before [the] fall" ( Cater v. Double Down Realty Corp., 101 A.D.3d 506, 506, 954 N.Y.S.2d 877 [1st Dept. 2012] ). Witness Nashwen Nagi testified that he was not in the bodega at the time of plaintiff's accident because he was on vacation, and did not have any knowledge of the accident until Stop 1 received a letter from plaintiff's lawyer. According to Nagi, Stop 1 did not maintain employment or repair records for the bodega.
The record in any event raises triable issues of fact sufficient for trial, as the affidavit from a nonparty witness presents an issue as to how long before the accident the rain had started.