Opinion
2013-10552
12-24-2014
Angela FERNANDEZ, appellant, v. BUCKNELL REALTY LIMITED PARTNERSHIP, et al., respondents.
Pena & Kahn, PLLC, Bronx, N.Y. (Diane Welch Bando of counsel), for appellant. Gordon & Silber, P.C., New York, N.Y. (Andrew B. Kaufman of counsel), for respondents.
Pena & Kahn, PLLC, Bronx, N.Y. (Diane Welch Bando of counsel), for appellant.
Gordon & Silber, P.C., New York, N.Y. (Andrew B. Kaufman of counsel), for respondents.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI and ROBERT J. MILLER, JJ.
Opinion In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Lane, J.), entered October 3, 2013, which granted the defendants' 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 denied.
The plaintiff alleged that she slipped and fell on a puddle of water as she entered the lobby of her apartment building, which was owned by the defendants. The plaintiff commenced this action against the defendants and, during the pendency of the action, the defendants moved for summary judgment dismissing the complaint on the ground that they did not create or have notice of the condition upon which the plaintiff allegedly fell. The Supreme Court granted the motion, and we reverse.
To impose liability upon a defendant in a slip-and-fall action, there must be evidence that a dangerous or defective condition existed, and that the defendant either created the condition or had actual or constructive notice of it (see Cusack v. Peter Luger, Inc., 77 A.D.3d 785, 909 N.Y.S.2d 532 ; Steisel v. Golden Reef Diner, 67 A.D.3d 670, 671, 888 N.Y.S.2d 150 ; DeLeon v. Westhab, Inc., 60 A.D.3d 888, 875 N.Y.S.2d 589 ; Sloane v. Costco Wholesale Corp., 49 A.D.3d 522, 523, 855 N.Y.S.2d 155 ). Thus, a defendant moving for summary judgment in a slip-and-fall action 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 Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 ; Altinel v. John's Farms, 113 A.D.3d 709, 979 N.Y.S.2d 360 ; Petersel v. Good Samaritan Hosp. of Suffern, 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 ). A defendant has constructive notice of a defect when the defect is visible and apparent, and existed for a sufficient length of time before the accident such that it could have been discovered and corrected (see Gordon v. American Museum of Natural History, 67 N.Y.2d at 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 ; Knack v. Red Lobster 286, N & D Rests., Inc., 98 A.D.3d 473, 949 N.Y.S.2d 205 ).
The evidence submitted by the defendants in support of their motion for summary judgment, which included the plaintiff's own deposition testimony, raised triable issues of fact as to whether the alleged condition that caused the plaintiff to fall was visible and apparent and whether it had existed for a sufficient length of time before the accident such that it could have been discovered and corrected by them (see Gordon v. American Museum of Natural History, 67 N.Y.2d at 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 ; Calabro v. Harbour at Blue Point Home Owners Assn., Inc., 120 A.D.3d 462, 991 N.Y.S.2d 101 ; Garris v. Lindemann, 117 A.D.3d 785, 986 N.Y.S.2d 180 ; Villaurel v. City of New York, 59 A.D.3d 709, 873 N.Y.S.2d 740 ). Since the defendants failed to eliminate all triable issues of fact, they failed to establish their prima facie entitlement to judgment as a matter of law. Accordingly, the Supreme Court should have denied their motion for summary judgment dismissing the complaint, regardless of 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 ).