Opinion
2016–09452 Index No. 51689/14
01-10-2018
Richard HANNEY, appellant, v. WHITE PLAINS GALLERIA, LP, et al., respondents (and a third-Party action).
Hach & Rose, LLP, New York, N.Y. (Robert F. Garnsey and Michael A. Rose of counsel), for appellant. Fishman McIntyre Berkeley Levine Samansky, P.C., New York, N.Y. (Philip H. Ziegler of counsel), for respondents.
Hach & Rose, LLP, New York, N.Y. (Robert F. Garnsey and Michael A. Rose of counsel), for appellant.
Fishman McIntyre Berkeley Levine Samansky, P.C., New York, N.Y. (Philip H. Ziegler of counsel), for respondents.
CHERYL E. CHAMBERS, J.P., JEFFREY A. COHEN, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Jamieson, J.), entered August 9, 2016, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint is denied.
On July 31, 2013, the plaintiff was working on a mechanical system on the roof of the Galleria Mall in White Plains, which was owned and/or managed by the defendants. The plaintiff allegedly sustained personal injuries when, as he descended a small set of wooden stairs, one of the steps cracked while he was on it, and he jumped from the step to avoid falling. The plaintiff commenced this action alleging, inter alia, that the defendants negligently maintained the staircase. The defendants moved, inter alia, for summary judgment dismissing the complaint. The Supreme Court, among other things, granted that branch of the defendants' motion, and the plaintiff appeals.
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 has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence (see Kyte v. Mid–Hudson Wendico, 131 A.D.3d 452, 15 N.Y.S.3d 147 ; Pampalone v. FBE Van Dam, LLC, 123 A.D.3d 988, 1 N.Y.S.3d 155 ; Martino v. Patmar Props., Inc., 123 A.D.3d 890, 999 N.Y.S.2d 449 ). 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 American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 ). To meet its prima facie 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 (see Rong Wen Wu v. Arniotes, 149 A.D.3d 786, 50 N.Y.S.3d 563; Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598–599, 869 N.Y.S.2d 222 ).
Here, while the evidence submitted in support of the subject branch of the defendants' motion may have demonstrated, prima facie, that they did not create the alleged condition or have actual notice thereof, it failed to demonstrate, prima facie, that they did not have constructive notice of it. Indeed, the evidence submitted on their motion failed to demonstrate when the subject staircase was last inspected relative to the plaintiff's accident (see Torre v. Aspen Knolls Estates Home Owners Assn, Inc., 150 A.D.3d 789, 789, 54 N.Y.S.3d 84 ; DeFelice v. Seakco Constr. Co., LLC, 150 A.D.3d 677, 678, 54 N.Y.S.3d 55 ; James v. Orion Condo–350 W. 42nd St., LLC, 138 A.D.3d 927, 30 N.Y.S.3d 216 ; Bruni v. Macy's Corporate Servs., Inc., 134 A.D.3d 870, 871, 21 N.Y.S.3d 333; Pryzywalny v. New York City Tr. Auth., 69 A.D.3d 598, 598, 892 N.Y.S.2d 181 ). Thus, in the absence of any evidence as to when they last inspected the staircase prior to the accident, they failed to establish, prima facie, that they lacked constructive notice of the allegedly defective condition of the step (see Pryzywalny v. New York City Tr. Auth., 69 A.D.3d at 598, 892 N.Y.S.2d 181 ). In light of the defendants' failure to meet their prima facie burden on the subject branch of their motion, we need not consider 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 ).
Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing the complaint.
CHAMBERS, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.