Opinion
2018–00426 Index No. 4023/14
05-01-2019
Sylvia CHANG, Respondent, v. MARMON ENTERPRISES, INC., et al., Appellants.
Hannum Feretic Prendergast & Merlino, LLC, New York, N.Y. (Denise M. Bush of counsel), for appellants. Sacco & Fillas LLP, Astoria, N.Y. (Steven Hoffman of counsel), for respondent.
Hannum Feretic Prendergast & Merlino, LLC, New York, N.Y. (Denise M. Bush of counsel), for appellants.
Sacco & Fillas LLP, Astoria, N.Y. (Steven Hoffman of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.
DECISION & ORDERIn an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered October 26, 2017. The order denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.
The plaintiff allegedly tripped and fell in the parking lot of the defendants' store. The plaintiff commenced this action against the defendants, the alleged owners and operators of the subject premises, to recover damages for personal injuries, alleging that they were negligent in, among other things, the maintenance of their premises. After joinder of issue, the defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the motion, and the defendants appeal.
A property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition (see Kellman v. 45 Tiemann Assoc., 87 N.Y.2d 871, 872, 638 N.Y.S.2d 937, 662 N.E.2d 255 ; Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ; Kyte v. Mid–Hudson Wendico, 131 A.D.3d 452, 15 N.Y.S.3d 147 ). "In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence" ( Steed v. MVA Enters., LLC, 136 A.D.3d 793, 794, 26 N.Y.S.3d 98 [internal quotation marks omitted] ). Thus, in a premises liability case, a defendant real property owner, or a party in possession or control of real property, who moves for summary judgment can establish its prima facie entitlement to judgment as a matter of law by showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence (see Gani v. Avenue R Sephardic Congregation, 159 A.D.3d 873, 873–874, 72 N.Y.S.3d 561 ; Kyte v. Mid–Hudson Wendico, 131 A.D.3d at 453, 15 N.Y.S.3d 147 ; Pampalone v. FBE Van Dam, LLC, 123 A.D.3d 988, 989, 1 N.Y.S.3d 155 ). A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 ).
A defendant can also establish its prima facie entitlement to judgment as a matter of law in a premises liability case by showing that the plaintiff cannot identify the cause of his or her accident (see Gani v. Avenue R Sephardic Congregation, 159 A.D.3d at 873–874, 72 N.Y.S.3d 561 ; McRae v. Venuto, 136 A.D.3d 765, 766, 24 N.Y.S.3d 745 ; Montemarano v. Sodexo, Inc., 121 A.D.3d 1059, 1060, 995 N.Y.S.2d 207 ; Izaguirre v. New York City Tr. Auth., 106 A.D.3d 878, 878, 966 N.Y.S.2d 122 ). A plaintiff's inability in a premises liability case to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation (see Palahnuk v. Tiro Rest. Corp., 116 A.D.3d 748, 983 N.Y.S.2d 603 ; DeForte v. Greenwood Cemetery, 114 A.D.3d 718, 980 N.Y.S.2d 499 ; Deputron v. A & J Tours, Inc., 106 A.D.3d 944, 945, 964 N.Y.S.2d 670 ).
Here, viewing the evidence in the light most favorable to the plaintiff as the nonmovant (see Bravo v. Vargas, 113 A.D.3d 579, 978 N.Y.S.2d 307 ; Green v. Quincy Amusements, Inc., 108 A.D.3d 591, 592, 969 N.Y.S.2d 489 ; Stukas v. Streiter, 83 A.D.3d 18, 918 N.Y.S.2d 176 ), the evidence relied upon by the defendants in support of their motion, which included the plaintiff's deposition transcript, failed to demonstrate the defendants' prima facie entitlement to judgment as a matter of law dismissing the complaint on the ground that the plaintiff was unable to identify the cause of her fall without speculation (see Flanagan v. Town of Huntington, 155 A.D.3d 1000, 1001, 64 N.Y.S.3d 590 ; Chilinski v. LMJ Contr., Inc., 137 A.D.3d 1185, 1188, 28 N.Y.S.3d 390 ; Drouillard v. Smarr, 136 A.D.3d 973, 973, 25 N.Y.S.3d 609 ; Severin v. T Burger, LLC, 127 A.D.3d 726, 726, 4 N.Y.S.3d 540 ; Martino v. Patmar Props., Inc., 123 A.D.3d 890, 891, 999 N.Y.S.2d 449 ). However, the defendants established, prima facie, that they did not create a dangerous or defective condition with respect to the subject parking lot, and did not have actual or constructive notice of the condition alleged by the plaintiff (see Gordon v. American Museum of Natural History, 67 N.Y.2d at 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 ; Palladino v. Monadnock Constr., Inc., 163 A.D.3d 698, 698, 81 N.Y.S.3d 129 ; Mustafaj v. Macri, 162 A.D.3d 891, 892, 78 N.Y.S.3d 423 ; Gani v. Avenue R Sephardic Congregation, 159 A.D.3d at 874, 72 N.Y.S.3d 561 ). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant created or had notice of any dangerous or defective condition with respect to the subject parking lot (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).
Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.
MASTRO, J.P., ROMAN, HINDS–RADIX and MALTESE, JJ., concur.