Opinion
2013-04-24
Luisa VALENTIN, appellant, v. SHOPRITE OF CHESTER, et al., respondents.
Harris Law, PLLC, New York, N.Y. (Cheryl A. Harris of counsel), for appellant. Alan R. Lewis, Newburgh, N.Y. (Walter Machnicki and John Caulfield of counsel), for respondents.
Harris Law, PLLC, New York, N.Y. (Cheryl A. Harris of counsel), for appellant. Alan R. Lewis, Newburgh, N.Y. (Walter Machnicki and John Caulfield of counsel), for respondents.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Bartlett, J.), dated August 8, 2011, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
In a slip-and-fall case, a defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the allegedly hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it ( see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774; Petersel v. Good Samaritan Hosp. of Suffern, N.Y., 99 A.D.3d 880, 951 N.Y.S.2d 917;Johnson v. Culinary Inst. of Am., 95 A.D.3d 1077, 1078, 944 N.Y.S.2d 307;Amendola v. City of New York, 89 A.D.3d 775, 775, 932 N.Y.S.2d 172;Zerilli v. Western Beef Retail, Inc., 72 A.D.3d 681, 898 N.Y.S.2d 614). Here, the defendants met their initial burden as the movants ( see Freiser v. Stop & Shop Supermarket Co., LLC., 84 A.D.3d 1307, 923 N.Y.S.2d 732;Zerilli v. Western Beef Retail, Inc., 72 A.D.3d at 682, 898 N.Y.S.2d 614). There was no evidence that the defendants created the wet condition complained of near the entrance to their store, and they were “not required to cover all of [their] floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain” ( Negron v. St. Patrick's Nursing Home, 248 A.D.2d 687, 687, 671 N.Y.S.2d 275;see Zerilli v. Western Beef Retail, Inc., 72 A.D.3d at 682, 898 N.Y.S.2d 614;Rogers v. Rockefeller Group Intl., Inc., 38 A.D.3d 747, 749, 832 N.Y.S.2d 600;Dubensky v. 2900 Westchester Co., LLC, 27 A.D.3d 514, 813 N.Y.S.2d 117). Further, the defendants demonstrated that they had no actual notice of the wet condition. Moreover, the defendants' evidence demonstrated that the condition complained of was not present for a sufficient period of time for the defendants to have discovered and remedied it. Thus, there was no basis for an inference that the defendants had constructive notice of the condition ( see Freiser v. Stop & Shop Supermarket Co., LLC., 84 A.D.3d at 1307, 923 N.Y.S.2d 732;cf. Doherty v. Smithtown Cent. School Dist., 49 A.D.3d 801, 854 N.Y.S.2d 202).
In opposition, the plaintiff failed to raise a triable issue of fact as to, among other things, whether the defendants had actual notice of a recurring hazardous condition such that they could be charged with constructive notice of the wet condition which caused the plaintiff to fall ( see Zerilli v. Western Beef Retail, Inc., 72 A.D.3d at 682, 898 N.Y.S.2d 614;Pinto v. Metropolitan Opera, 61 A.D.3d 949, 950, 877 N.Y.S.2d 470;Perlongo v. Park City 3 & 4 Apts., Inc., 31 A.D.3d 409, 411, 818 N.Y.S.2d 158;Rogers v. Rockefeller Group Intl., Inc., 38 A.D.3d at 750, 832 N.Y.S.2d 600).
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.
The plaintiff's remaining contention is academic in light of our determination.