Rachlinv.Michaels Arts & Crafts, Michaels Stores, Inc.

Supreme Court, Appellate Division, Fourth Department, New York.Jun 20, 2014
988 N.Y.S.2d 741 (N.Y. App. Div. 2014)
988 N.Y.S.2d 741118 A.D.3d 13912014 N.Y. Slip Op. 4596

2014-06-20

Maritza RACHLIN and Dennis R. Rachlin, Plaintiffs–Respondents, v. MICHAELS ARTS & CRAFTS, Michaels Stores, Inc. and Boulevard Mall Expansion, LLC, Defendants–Appellants. Michaels Stores, Inc. and Michaels Arts & Crafts, Third–Party Plaintiffs–Respondents, v. Boulevard Mall Expansion, LLC, Third–Party Defendant–Appellant. (Appeal No. 2.).

Goldberg Segalla LLP, Buffalo (Michael Glascott of Counsel), for Defendant–Appellant Boulevard Mall Expansion, LLC and Third–Party Defendant–Appellant. Damon Morey LLP, Buffalo (Michael J. Willett of Counsel), for Defendants–Appellants Michaels Arts & Crafts and Michaels Stores, Inc. and Third–Party Plaintiffs–Respondents.



Goldberg Segalla LLP, Buffalo (Michael Glascott of Counsel), for Defendant–Appellant Boulevard Mall Expansion, LLC and Third–Party Defendant–Appellant. Damon Morey LLP, Buffalo (Michael J. Willett of Counsel), for Defendants–Appellants Michaels Arts & Crafts and Michaels Stores, Inc. and Third–Party Plaintiffs–Respondents.
Harris Beach PLLC, Buffalo (Richard T. Sullivan of Counsel), for Plaintiffs–Respondents.

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, and VALENTINO, JJ.


MEMORANDUM:


Plaintiffs commenced this personal injury action seeking to recover damages resulting from injuries sustained by Maritza Rachlin (plaintiff) when she slipped and fell on a puddle of water inside a retail store. Plaintiffs allege, inter alia, that the puddle was the result of a persistently leaky roof at the subject premises. Defendant-third-party defendant Boulevard Mall Expansion, LLC (Boulevard) is the owner of the property and defendants-third-party plaintiffs, Michaels Arts & Crafts and Michaels Stores, Inc. (collectively, Michaels defendants) are the tenants that operate the retail store thereon. Boulevard appeals from an order that, inter alia, denied its cross motion for summary judgment dismissing the complaint and third-party complaint. The Michaels defendants appeal from the same order insofar as it denied that part of their cross motion for summary judgment dismissing the complaint against them. We reject the contentions of Boulevard and the Michaels defendants (hereafter, defendants) that they did not have actual or constructive notice of the alleged dangerous condition that caused plaintiff's fall, and thus that Supreme Court erred in denying those parts of their respective cross motions seeking summary judgment dismissing plaintiffs' complaint.

“It is well settled that defendant[s] cannot establish [their] entitlement to judgment as a matter of law simply by pointing to gaps in plaintiffs['] proof” ( Route 104 & Rte. 21 Dev., Inc. v. Chevron U.S.A., Inc., 96 A.D.3d 1491, 1492, 946 N.Y.S.2d 379;see Baity v. General Elec. Co., 86 A.D.3d 948, 950, 927 N.Y.S.2d 492;Orcutt v. American Linen Supply Co., 212 A.D.2d 979, 980, 623 N.Y.S.2d 457). Rather, each defendant had the initial burden on its respective cross motion of establishing as a matter of law that it did not have actual or constructive notice of the alleged dangerous condition inside the store ( see Murphy v. County of Westchester, 228 A.D.2d 970, 971, 644 N.Y.S.2d 598;see generally Conti v. Town of Constantia, 96 A.D.3d 1461, 1462, 946 N.Y.S.2d 747). We conclude that defendants failed to meet their initial burden with respect to actual or constructive notice ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). The evidence in the record establishes that the building's roof had leaked on multiple occasions in the past and had leaked on the day of the subject accident, which resulted in water entering the area of the store open to the public. Given that evidence, we conclude that “ ‘a trier of fact could reasonably infer that the defendant[s] had actual notice of such a recurring condition’ ” ( Batista v. KFC Nat. Mgt. Co., 21 A.D.3d 917, 918, 801 N.Y.S.2d 336;see Garcia v. U–Haul Co., 303 A.D.2d 453, 454, 755 N.Y.S.2d 900). Moreover, “[a] defendant who has actual notice of a recurring dangerous condition can be charged with constructive notice of each specific recurrence of the condition” ( Batista, 21 A.D.3d at 917, 801 N.Y.S.2d 336;see Phillips v. Henry B'S, Inc., 85 A.D.3d 1665, 1666, 925 N.Y.S.2d 770). Contrary to defendants' contention, the testimony of a manager for the Michaels defendants with respect to causation, i.e., that the accident was caused by melting snow or slush from plaintiff's boots, is speculative, and that testimony is therefore insufficient to establish defendants' entitlement to judgment as a matter of law. Finally, given Boulevard's failure to establish that it did not have actual or constructive notice of the alleged dangerous condition, we conclude that the court properly denied Boulevard's cross motion insofar as it sought dismissal of the third-party complaint against it.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.