Opinion
2014-09964, Index No. 19670/12.
04-22-2015
Celia DERISE, respondent, v. JAAK 773, INC., doing business as 773 Lounge, appellant.
White & McSpedon, P.C., New York, N.Y. (Joseph W. Sands of counsel), for appellant. Harnick & Harnick, P.C., New York, N.Y. (Thomas Harnick and Brandon J. Walters of counsel), for respondent.
White & McSpedon, P.C., New York, N.Y. (Joseph W. Sands of counsel), for appellant.
Harnick & Harnick, P.C., New York, N.Y. (Thomas Harnick and Brandon J. Walters of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
Opinion In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated September 3, 2014, which denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly slipped and fell on a puddle on the floor of the defendant's bar. The Supreme Court denied the defendant's motion for summary judgment dismissing the complaint.
A defendant moving for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Hernandez v. New York City Hous. Auth., 116 A.D.3d 662, 983 N.Y.S.2d 577 ; Mahoney v. AMC Entertainment, Inc., 103 A.D.3d 855, 959 N.Y.S.2d 752 ; Knack v. Red Lobster 286, N & D Rests., Inc., 98 A.D.3d 473, 949 N.Y.S.2d 205 ). “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it” (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 ). In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in favor of the nonmoving party (see Giraldo v. Twins Ambulette Serv., Inc., 96 A.D.3d 903, 946 N.Y.S.2d 871 ; Boyd v. Rome Realty Leasing Ltd. Partnership, 21 A.D.3d 920, 921, 801 N.Y.S.2d 340 ). Moreover, 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 (see Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176 ; Doize v. Holiday Inn Ronkonkoma, 6 A.D.3d 573, 574, 774 N.Y.S.2d 792 ).
Here, the defendant failed to establish its prima facie entitlement to judgment as a matter of law, because it failed to demonstrate that it did not create or have actual or constructive notice of the allegedly hazardous condition (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 ; Griffith v. JK Chopra Holding, LLC, 111 A.D.3d 666, 666, 974 N.Y.S.2d 790 ; Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 869 N.Y.S.2d 222 ). A triable issue of fact exists as to when the bar floor area was last inspected in relation to the accident and, thus, whether the alleged hazardous condition described by the plaintiff existed for a sufficient length of time prior to the incident to permit the defendant to remedy that condition (see Green v. Quincy Amusements, Inc., 108 A.D.3d 591, 969 N.Y.S.2d 489 ; Green v. Albemarle, LLC, 107 A.D.3d 948, 948, 966 N.Y.S.2d 904 ; Alexander v. New York City Hous. Auth., 89 A.D.3d 969, 933 N.Y.S.2d 357 ; Reyes v. Arco Wentworth Mgt. Corp., 83 A.D.3d 47, 52–53, 919 N.Y.S.2d 44 ). Since the defendant failed to meet its initial burden as the movant, it is not necessary to review the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 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.