Opinion
2020–00856 Index No. 505309/16
01-18-2023
Tamara VINOKUROVA, respondent, v. EDITH AND CARL MARKS JEWISH COMMUNITY HOUSE OF BENSONHURST, INC., appellant.
KL Rotondo & Associates, Rye, NY (Kathi L. Rotondo of counsel), for appellant.
KL Rotondo & Associates, Rye, NY (Kathi L. Rotondo of counsel), for appellant.
VALERIE BRATHWAITE NELSON, J.P., PAUL WOOTEN, LARA J. GENOVESI, BARRY E. WARHIT, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated November 22, 2019. The order denied the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, without costs or disbursements.
The plaintiff allegedly was injured when, on a rainy morning, she slipped and fell inside a vestibule of a building owned by the defendant. The plaintiff subsequently commenced this action to recover damages for personal injuries. Following discovery, the defendant moved for summary judgment dismissing the complaint, arguing, inter alia, that it lacked constructive notice of the alleged dangerous condition. The Supreme Court denied the motion, and the defendant appeals.
In a slip-and-fall case, a defendant moving for summary judgment "has the burden of making a prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence" ( Parietti v. Wal–Mart Stores, Inc., 29 N.Y.3d 1136, 1137, 61 N.Y.S.3d 523, 83 N.E.3d 853 ; see Bonilla v. Southside United Hous. Dev. Fund Corp., 181 A.D.3d 550, 551, 117 N.Y.S.3d 612 ). While a defendant is not required to cover all of its floors with mats, or to continuously mop up all moisture resulting from tracked-in precipitation (see Paduano v. 686 Forest Ave., LLC, 119 A.D.3d 845, 989 N.Y.S.2d 379 ; Curtis v. Dayton Beach Park No. 1 Corp., 23 A.D.3d 511, 512, 806 N.Y.S.2d 664 ; Negron v. St. Patrick's Nursing Home, 248 A.D.2d 687, 671 N.Y.S.2d 275 ), a defendant may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial action (see Mentasi v. Eckerd Drugs, 61 A.D.3d 650, 651, 877 N.Y.S.2d 149 ; Ruic v. Roman Catholic Diocese of Rockville Ctr., 51 A.D.3d 1000, 1001, 858 N.Y.S.2d 761 ). "To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" ( Rivera v. Roman Catholic Archdiocese of N.Y., 197 A.D.3d 744, 745, 153 N.Y.S.3d 164 [internal quotation marks omitted]; see Fortune v. Western Beef, Inc., 178 A.D.3d 671, 672, 115 N.Y.S.3d 93 ). " ‘Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice’ " ( Butts v. SJF, LLC, 171 A.D.3d 688, 689, 97 N.Y.S.3d 219, quoting Herman v. Lifeplex, LLC, 106 A.D.3d 1050, 1051, 966 N.Y.S.2d 473 ; see Giantomaso v. T. Weiss Realty Corp., 142 A.D.3d 950, 951, 37 N.Y.S.3d 313 ).
Here, the evidence submitted by the defendant in support of its motion failed to demonstrate, prima facie, that it lacked constructive notice of the alleged dangerous condition that caused the plaintiff to fall. The defendant's building manager testified only as to the building's general cleaning and inspection practices—the defendant did not proffer any evidence demonstrating when the vestibule was last cleaned or inspected before the accident (see Rodriguez v. New York City Hous. Auth., 169 A.D.3d 947, 948, 94 N.Y.S.3d 318 ; Quinones v. Starret City, Inc., 163 A.D.3d 1020, 1022, 81 N.Y.S.3d 184 ; Eksarko v. Associated Supermarket, 155 A.D.3d 826, 827, 63 N.Y.S.3d 723 ).
Since the defendant did not sustain its prima facie burden of establishing its entitlement to judgment as a matter of law, it is not necessary to consider the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.
BRATHWAITE NELSON, J.P., WOOTEN, GENOVESI and WARHIT, JJ., concur.