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Jeremias v. Lake Forest Estates

Supreme Court, Appellate Division, Second Department, New York.
Feb 1, 2017
147 A.D.3d 742 (N.Y. App. Div. 2017)

Opinion

02-01-2017

Abraham JEREMIAS, respondent, v. LAKE FOREST ESTATES, appellant.

Barry, McTiernan & Moore, LLC, New York, NY (David H. Schultz of counsel), for appellant. Subin Associates, LLP (Pollack, Pollack, Isaac & De Cicco, LLP, New York, NY [Brian J. Isaac ], of counsel), for respondent.


Barry, McTiernan & Moore, LLC, New York, NY (David H. Schultz of counsel), for appellant.

Subin Associates, LLP (Pollack, Pollack, Isaac & De Cicco, LLP, New York, NY [Brian J. Isaac ], of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, and VALERIE BRATHWAITE NELSON, JJ.

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), dated June 15, 2015, as denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

A defendant moving for summary judgment in a slip-and-fall case has the burden of demonstrating, prima facie, that it did not create the alleged dangerous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Milorava v. Lord & Taylor Holdings, LLC, 133 A.D.3d 724, 725, 20 N.Y.S.3d 398 ; Jordan v. Juncalito Abajo Meat Corp., 131 A.D.3d 1012, 16 N.Y.S.3d 278 ). 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, 501 N.Y.S.2d 646, 492 N.E.2d 774 ). To meet its initial burden on the issue of lack of constructive notice, the defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall (see Schwartz v. Gold Coast Rest. Corp., 139 A.D.3d 696, 697, 31 N.Y.S.3d 535 ; James v. Orion Condo–350 W. 42nd St., LLC, 138 A.D.3d 927, 30 N.Y.S.3d 216 ).

Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition that caused the plaintiff to fall. The deposition testimony of the defendant's caretaker, submitted in support of the motion, did not establish when the accident site was last inspected in relation to the plaintiff's fall. The caretaker merely testified about general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, which is insufficient to establish a lack of constructive notice (see James v. Orion Condo–350 W. 42nd St., LLC, 138 A.D.3d 927, 30 N.Y.S.3d 216 ; Korn v. Parkside Harbors Apts., LLC, 134 A.D.3d 769, 770, 22 N.Y.S.3d 99 ; Milorava v. Lord & Taylor Holdings, LLC, 133 A.D.3d at 725–726, 20 N.Y.S.3d 398 ; Sesina v. Joy Lea Realty, LLC, 123 A.D.3d 1000, 1001, 999 N.Y.S.2d 854 ).

Thus, the defendant failed to meet its initial burden as the movant (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 properly denied the defendant's motion for summary judgment, regardless of the sufficiency of the opposition papers (see id. at 852, 487 N.Y.S.2d 316, 476 N.E.2d 642 ). In light of our determination, it is not necessary to reach the parties' remaining contentions.


Summaries of

Jeremias v. Lake Forest Estates

Supreme Court, Appellate Division, Second Department, New York.
Feb 1, 2017
147 A.D.3d 742 (N.Y. App. Div. 2017)
Case details for

Jeremias v. Lake Forest Estates

Case Details

Full title:Abraham JEREMIAS, respondent, v. LAKE FOREST ESTATES, appellant.

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: Feb 1, 2017

Citations

147 A.D.3d 742 (N.Y. App. Div. 2017)
147 A.D.3d 742
2017 N.Y. Slip Op. 635

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