Opinion
2018–06822 Index No. 609569/15
12-29-2021
Robert MONACO III, appellant, v. Frank RUSSILLO, defendant, Enid Russillo, respondent.
Salenger, Sack, Kimmel & Bavaro, LLP, Woodbury, NY (Beth S. Gereg of counsel), for appellant. Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, NY (Anton Pitroski of counsel), for respondent.
Salenger, Sack, Kimmel & Bavaro, LLP, Woodbury, NY (Beth S. Gereg of counsel), for appellant.
Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, NY (Anton Pitroski of counsel), for respondent.
MARK C. DILLON, J.P., LINDA CHRISTOPHER, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (John H. Rouse, J.), dated February 23, 2018. The order, insofar as appealed from, granted the motion of the defendant Enid Russillo for summary judgment dismissing the complaint insofar as asserted against her.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On the morning of January 29, 2014, the plaintiff, a Nassau County police officer, allegedly was injured when he slipped and fell on a wet single-step riser located at premises owned by the defendant Enid Russillo (hereinafter the defendant). The plaintiff was at the defendant's home in connection with an emergency call involving the defendant's mother, who had been found unresponsive and not breathing. The plaintiff subsequently commenced this personal injury action against, among others, the defendant, alleging common-law negligence and a violation of General Municipal Law § 205–e. The defendant moved for summary judgment dismissing the complaint insofar as asserted against her. In an order dated February 23, 2018, the Supreme Court, inter alia, granted the defendant's motion. The plaintiff 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 (see Yarosh v. Oceana Holding Corp., 172 A.D.3d 1142, 1143, 101 N.Y.S.3d 72 ; Blazejewski v. New York City Dept. of Educ., 144 A.D.3d 851, 852, 40 N.Y.S.3d 791 ). Here, the defendant established her prima facie entitlement to judgment as a matter of law by demonstrating that she did not create the allegedly hazardous condition on the step, or have actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied it, particularly given the ongoing emergency involving her mother (see Yarosh v. Oceana Holding Corp., 172 A.D.3d at 1143, 101 N.Y.S.3d 72 ; Valentin v. Shoprite of Chester, 105 A.D.3d 1036, 1037, 965 N.Y.S.2d 510 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Talamas v. Metropolitan Transp. Auth., 120 A.D.3d 1333, 1335, 993 N.Y.S.2d 102 ).
To establish a cause of action under General Municipal Law § 205–e, a police officer plaintiff must (1) identify the statute or ordinance with which the defendant allegedly failed to comply, (2) describe the manner in which the police officer was injured, and (3) set forth facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm (see Williams v. City of New York, 2 N.Y.3d 352, 363, 779 N.Y.S.2d 449, 811 N.E.2d 1103 ). "Liability pursuant [to] General Municipal Law § 205–e will exist where there is negligent noncompliance with any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, provided that the statute, ordinance, rule, order or requirement cited is found in a well-developed bod[y] of law and regulation that impose[s] clear duties" ( Mulham v. City of New York, 110 A.D.3d 856, 857, 973 N.Y.S.2d 314 [citation and internal quotation marks omitted]). Although recovery under General Municipal Law § 205–e does not require proof of such notice as would be necessary to a common-law negligence cause of action, i.e., actual or constructive notice of the particular defect on the premises causing injury, the plaintiff still must establish that the circumstances surrounding the violation indicate that it was a result of neglect, omission, or willful or culpable negligence on the defendant's part (see Alexander v. City of New York, 82 A.D.3d 1022, 1024, 920 N.Y.S.2d 148 ).
Here, the defendant established, prima facie, that "the requisite culpability for the [alleged] violation[s][was] lacking" ( Lustenring v. 98–100 Realty, 1 A.D.3d 574, 578, 768 N.Y.S.2d 20 [internal quotation marks omitted]). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted against her.
DILLON, J.P., CHRISTOPHER, WOOTEN and ZAYAS, JJ., concur.