From Casetext: Smarter Legal Research

Lebron v. 142 S 9, LLC

Supreme Court, Appellate Division, Second Department, New York.
Jun 14, 2017
151 A.D.3d 835 (N.Y. App. Div. 2017)

Opinion

06-14-2017

Sumergida LEBRON, respondent, v. 142 S 9, LLC, et al., appellants.

Pillinger Miller Tarallo, LLP, Elsmford, NY (Douglas A. Gingold of counsel), for appellants. Cellino & Barnes, P.C., Garden City, NY (John Lavelle of counsel), for respondent.


Pillinger Miller Tarallo, LLP, Elsmford, NY (Douglas A. Gingold of counsel), for appellants.

Cellino & Barnes, P.C., Garden City, NY (John Lavelle of counsel), for respondent.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, and BETSY BARROS, JJ.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Wade, J.), dated October 7, 2016, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured when she slipped and fell on water on a stairway in a building owned by the defendants. The plaintiff thereafter commenced this action to recover damages for personal injuries. The defendants moved for summary judgment dismissing the complaint, and the Supreme Court denied the motion. The defendants appeal.

The defendants failed to demonstrate, prima facie, that they lacked notice of the alleged water on the stairs so as to establish their entitlement to judgment as a matter of law (see generally Garcia–Monsalve v. Wellington Leasing, L.P., 123 A.D.3d 1085, 1086, 1 N.Y.S.3d 228 ; Rogers v. Bloomingdale's, Inc., 117 A.D.3d 933, 985 N.Y.S.2d 731 ). A defendant has constructive notice of a dangerous condition when the condition has been visible and apparent long enough for the defendant to have discovered and remedied it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774 ; Garcia–Monsalve v. Wellington Leasing, L.P., 123 A.D.3d at 1086, 1 N.Y.S.3d 228 ).

Here, the defendants did not submit any evidence regarding specific cleaning or inspection of the area in question, or any other affirmative proof to demonstrate how long the condition had existed. Rather, they merely provided evidence regarding the general cleaning practices and inspection procedures employed by the building superintendent, which is insufficient to establish a lack of constructive notice (see Jeremias v. Lake Forest Estates, 147 A.D.3d 742, 46 N.Y.S.3d 188 ; Giantomaso v. T. Weiss Realty Corp., 142 A.D.3d 950, 951, 37 N.Y.S.3d 313 ; Garcia–Monsalve v. Wellington Leasing, L.P., 123 A.D.3d at 1086, 1 N.Y.S.3d 228 ). Further, the defendants' contention that the "water could have been deposited there only minutes or seconds before the alleged fall" is pure speculation, and the defendants cannot satisfy their initial burden on summary judgment merely by pointing to gaps in the plaintiff's case (see Jiann Hwa Fang v. Metropolitan Transp. Auth., 148 A.D.3d 791, 48 N.Y.S.3d 758 ; Lorenzo v. 7201 Owners Corp., 133 A.D.3d 641, 20 N.Y.S.3d 123 ).

Since the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law, the Supreme Court properly denied their motion without regard to 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 ).In light of our determination, we need not reach the parties' remaining contentions.


Summaries of

Lebron v. 142 S 9, LLC

Supreme Court, Appellate Division, Second Department, New York.
Jun 14, 2017
151 A.D.3d 835 (N.Y. App. Div. 2017)
Case details for

Lebron v. 142 S 9, LLC

Case Details

Full title:Sumergida LEBRON, respondent, v. 142 S 9, LLC, et al., appellants.

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

Date published: Jun 14, 2017

Citations

151 A.D.3d 835 (N.Y. App. Div. 2017)
151 A.D.3d 835
2017 N.Y. Slip Op. 4827

Citing Cases

Seedat v. Capital One Bank

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima…

Ellis v. Sirico's Catering, Inc.

Further, "a defendant can make its prima facie showing of entitlement to judgment as a matter of law by…