Opinion
2020–03239 Index No. 505804/17
04-13-2022
Ciara CLARK, respondent, v. STOP & SHOP SUPERMARKET COMPANY, LLC, appellant.
Cullen & Dykman, LLP, Garden City, NY (Nicholas M. Cardascia of counsel), for appellant. Law Offices of Robert A. Flaster, P.C., New York, NY (Jonathan A. Fier and Joshua S. Perlman of counsel), for respondent.
Cullen & Dykman, LLP, Garden City, NY (Nicholas M. Cardascia of counsel), for appellant.
Law Offices of Robert A. Flaster, P.C., New York, NY (Jonathan A. Fier and Joshua S. Perlman of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Pamela L. Fisher, J.), dated February 4, 2020. The order denied the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action against the defendant to recover damages for personal injuries that she allegedly sustained when she slipped and fell on oil in an aisle of the defendant's supermarket. The defendant moved for summary judgment dismissing the complaint. The Supreme Court denied the motion. The defendant appeals.
"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 did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it" ( Mehta v. Stop & Shop Supermarket Co., LLC, 129 A.D.3d 1037, 1038, 12 N.Y.S.3d 269 ; see Diers v. King Kullen Grocery Co., Inc., 134 A.D.3d 666, 19 N.Y.S.3d 780 ; Payen v. Western Beef Supermarket, 106 A.D.3d 710, 964 N.Y.S.2d 583 ). To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall (see Finch v. Dake Bros., Inc., 139 A.D.3d 1001, 1002, 33 N.Y.S.3d 325 ; Yioves v. T.J. Maxx, Inc., 29 A.D.3d 572, 573, 815 N.Y.S.2d 119 ). "The court's function on a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility but merely to determine whether such issues exist" ( Doize v. Holiday Inn Ronkonkoma, 6 A.D.3d 573, 574, 774 N.Y.S.2d 792 [internal quotation marks omitted]).
Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the alleged slippery condition (see Negri v. Stop & Shop, Inc., 65 N.Y.2d 625, 491 N.Y.S.2d 151, 480 N.E.2d 740 ; Field v. Waldbaum, Inc., 35 A.D.3d 652, 653, 827 N.Y.S.2d 253 ; Catanzaro v. King Kullen Grocery Co., 194 A.D.2d 584, 599 N.Y.S.2d 74 ). In light of the conflicting evidence submitted by the defendant in support of its motion, the defendant failed to meet its initial burden as the movant.
Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint without regard to 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 ).
BRATHWAITE NELSON, J.P., RIVERA, FORD and DOWLING, JJ., concur.