Opinion
2014-04-30
Gyulnara GADZHIYEVA, respondent, v. Jack SMITH, et al., appellants.
Margaret G. Klein (Crafa & Sofield, P.C., Rockville Centre, N.Y. [Joseph R. Crafa], of counsel), for appellants. Domenic M. Recchia, Jr. (Arnold E. DiJoseph, P.C., New York, N.Y. [Arnold E. DiJoseph III], of counsel), for respondent.
Margaret G. Klein (Crafa & Sofield, P.C., Rockville Centre, N.Y. [Joseph R. Crafa], of counsel), for appellants.Domenic M. Recchia, Jr. (Arnold E. DiJoseph, P.C., New York, N.Y. [Arnold E. DiJoseph III], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated August 13, 2013, which 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 slipped and fell on an oily substance on the sixth floor hallway of the 23–story apartment building where she resided. The apartment building was owned by the defendant Trump Village Apartments Two Owner, LLC, and managed by the defendant Apartment Management Associates, LLC, which employed the defendant Jack Smith as the apartment building property manager. The plaintiff subsequently commenced this action against the defendants, and the defendants moved for summary judgment dismissing the complaint, contending that they did not create the alleged hazardous condition or have actual or constructive notice of the alleged hazardous condition. The Supreme Court denied the motion.
A defendant moving for summary judgment in a slip-and-fall case has the burden of establishing, prima facie, that it neither created the alleged hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it ( see Pastore v. Western Beef, Inc., 110 A.D.3d 860, 972 N.Y.S.2d 703;Petersel v. Good Samaritan Hosp. of Suffern, N.Y., 99 A.D.3d 880, 951 N.Y.S.2d 917). To provide 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;see Mercedes v. City of New York, 107 A.D.3d 767, 968 N.Y.S.2d 519). “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” ( Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598–599, 869 N.Y.S.2d 222;see Schiano v. Mijul, Inc., 79 A.D.3d 726, 726–727, 912 N.Y.S.2d 134).
Here, the evidence that the defendants submitted in support of their motion, which included, inter alia, the deposition testimony and the affidavit of the apartment building's porter, was sufficient to establish, prima facie, that they did not create or have actual or constructive notice of the alleged hazardous condition ( see Arslan v. Richmond N. Bellmore Realty, LLC, 79 A.D.3d 950, 913 N.Y.S.2d 328;Scheer v. Pathmark Stores, 6 A.D.3d 520, 774 N.Y.S.2d 394). Contrary to the plaintiff's contention, the porter's statements in his affidavit regarding when he last inspected the subject hallway were not inconsistent with his prior deposition testimony ( see generally Kievman v. Philip, 84 A.D.3d 1031, 924 N.Y.S.2d 112;Barco v. Green Bus Lines, Inc., 62 A.D.3d 923, 879 N.Y.S.2d 564). In opposition, the plaintiff failed to raise a triable issue of fact ( 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 should have granted the defendants' motion for summary judgment dismissing the complaint. RIVERA, J.P., DICKERSON, COHEN, HINDS–RADIX and MALTESE, JJ., concur.