Opinion
2019-13801 Index 8523/17
03-23-2022
Meir Padel, appellant, v. Boris Nisanov, et al., respondents.
Jonah Grossman, Jamaica, NY (Lawrence B. Lame of counsel), for appellant. Gold, Benes, LLP, Bellmore, NY (Karen C. Higgins, Jeffrey B. Gold, and Keith Lederman of counsel), for respondents.
Jonah Grossman, Jamaica, NY (Lawrence B. Lame of counsel), for appellant.
Gold, Benes, LLP, Bellmore, NY (Karen C. Higgins, Jeffrey B. Gold, and Keith Lederman of counsel), for respondents.
VALERIE BRATHWAITE NELSON, J.P. CHERYL E. CHAMBERS SHERI S. ROMAN 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, Queens County (Denis J. Butler, J.), entered October 21, 2019. The order, insofar as appealed from, upon reargument, vacated an order of the same court entered May 16, 2019, denying the defendants' motion for summary judgment dismissing the complaint, and thereupon granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order entered October 21, 2019, is reversed insofar as appealed from, on the law, with costs, and, upon reargument, the determination in the order entered May 16, 2019, denying the defendants' motion for summary judgment dismissing the complaint, is adhered to.
The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained when he slipped and fell on debris on the exterior step of the defendants' premises. 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 its existence. By order entered May 16, 2019, the Supreme Court denied the motion. The defendants moved for leave to reargue their motion. Upon reargument, the court vacated the order entered May 16, 2019, denying the defendants' motion for summary judgment dismissing the complaint, and thereupon granted the defendants' motion for summary judgment dismissing the complaint. The plaintiff appeals.
Upon reargument, the Supreme Court should have adhered to its prior determination in the order entered May 16, 2019, denying the defendants' motion for summary judgment dismissing the complaint. "In a slip-and-fall case, a defendant property owner moving for summary judgment has the burden of making a prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence" (Parietti v Wal-Mart Stores, Inc., 29 N.Y.3d 1136, 1137; see Meade v New York City Hous. Auth., 189 A.D.3d 1390, 1391). 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 v American Museum of Natural History, 67 N.Y.2d 836, 837). 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 Meade v New York City Hous. Auth., 189 A.D.3d at 1391; Croshier v New Horizons Resources, Inc., 185 A.D.3d 780, 781; Birnbaum v New York Racing Assn., Inc., 57 A.D.3d 598, 598-599).
Here, the defendants failed to demonstrate, prima facie, that they inspected or cleaned the premises within a reasonable time prior to the accident and that the condition at issue had not existed for a sufficient length of time to afford them a reasonable opportunity to discover and remedy it (see Croshier v New Horizons Resources, Inc., 185 A.D.3d at 781-782; Birnbaum v New York Racing Assn., Inc., 57 A.D.3d at 598-599). As the defendants moving for summary judgment dismissing the complaint, they could not satisfy their initial burden merely by pointing to gaps in the plaintiff's case (see Miller v Terrace City Lodge No. 1499, Improved Benevolent Protection Order of the Elks of the World of Yonkers, N.Y., Inc., 197 A.D.3d 643, 644; Lebron v 142 S 9, LLC, 151 A.D.3d 835, 836; Baines v G & D Ventures, Inc., 64 A.D.3d 528, 529). Accordingly, the Supreme Court should not have, upon reargument, granted the defendants' motion for summary judgment dismissing the complaint.
In light of our determination, we need not reach the parties' remaining contentions.
BRATHWAITE NELSON, J.P., CHAMBERS, ROMAN and ZAYAS, JJ., concur.