Radostav.Schechter

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial DepartmentApr 17, 2019
97 N.Y.S.3d 664 (N.Y. App. Div. 2019)

2017–11358 Index No. 7292/14

04-17-2019

Deborah RADOSTA, et al., Appellants, v. Robert SCHECHTER, etc., Defendant, 7–Eleven Incorporated, et al., Respondents.

Sullivan Papain Block McGrath & Cannavo P.C., New York, N.Y. (Stephen C. Glasser and Gabriel A. Arce–Yee of counsel), for appellants. Sobel Pevzner, LLC, Huntington, N.Y. (Nicole Licata–McCord of counsel), for respondents.


Sullivan Papain Block McGrath & Cannavo P.C., New York, N.Y. (Stephen C. Glasser and Gabriel A. Arce–Yee of counsel), for appellants.

Sobel Pevzner, LLC, Huntington, N.Y. (Nicole Licata–McCord of counsel), for respondents.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOSEPH J. MALTESE, BETSY BARROS, JJ.

DECISION & ORDERIn a consolidated action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Joseph C. Pastoressa, J.), dated September 6, 2017. The order, insofar as appealed from, granted that branch of the motion of the defendants 7–Eleven Incorporated, Southland Corporation, 7–Eleven, Inc., and Mary Said which was for summary judgment dismissing the complaint insofar as asserted against the defendants 7–Eleven Incorporated, Southland Corporation, and Mary Said.

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

The plaintiff Deborah Radosta (hereinafter the injured plaintiff) allegedly was caused to slip and fall on clear rain water that had accumulated near the front entrance inside a 7–Eleven store in Smithtown. The defendant Robert Schechter, doing business as 7–Eleven Store No. 11198, owned the building where the store was located. The defendant 7–Eleven, Inc., as franchisor, leased the premises from Schechter. The defendant Mary Said was the franchisee of the store at the time of the accident. Said had her own employees who helped her operate and maintain the store.

In this consolidated action, the injured plaintiff, and her husband suing derivatively, allege that the defendants were negligent in, among other things, their maintenance of the premises. 7–Eleven Incorporated, Southland Corporation, 7–Eleven, Inc., and Said (hereinafter collectively the defendants) moved for summary judgment dismissing the complaint insofar as asserted against them on the ground, among others, that they did not create or have actual or constructive notice of the wet condition. 7–Eleven, Inc., also asserted that it was an out-of-possession franchisor that did not exercise control over the daily operations or maintenance of the store. The Supreme Court granted the motion. The plaintiffs appeal from so much of the order as granted that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against 7–Eleven Incorporated, Southland Corporation, and Said. The plaintiffs contend that triable issues of fact exist as to whether 7–Eleven Incorporated, Southland Corporation, and Said had constructive notice of the wet condition.

In general, to impose liability for an injury proximately caused by a dangerous condition created by precipitation tracked into a building, a defendant must either have created the dangerous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial actions (see Hickson v. Walgreen Co. , 150 A.D.3d 1087, 1087–1088, 56 N.Y.S.3d 157 ; Ford v. Citibank, N.A. , 11 A.D.3d 508, 783 N.Y.S.2d 622 ). A defendant has constructive notice of a dangerous condition when the dangerous condition is visible and apparent, and existed for a sufficient length of time before the accident that is could have been discovered and corrected (see Gordon v. American Museum of Natural History , 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 ; Hickson v. Walgreen Co. , 150 A.D.3d at 1088, 56 N.Y.S.3d 157 ). "To meet its initial burden of 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" ( Birnbaum v. New York Racing Assn., Inc. , 57 A.D.3d 598, 598–599, 869 N.Y.S.2d 222 ; see Rogers v. Bloomingdale's, Inc. , 117 A.D.3d 933, 985 N.Y.S.2d 731 ).

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar asserted against 7–Eleven Incorporated, Southland Corporation, and Said by demonstrating that Said and her employees took reasonable precautions to remedy the wet condition on the premises caused by the tracked-in rain on the day of the accident (see Ruck v. Levittown Norse Assoc., LLC , 27 A.D.3d 444, 812 N.Y.S.2d 567 ; Ford v. Citibank, N.A. , 11 A.D.3d at 508–509, 783 N.Y.S.2d 622 ). It is undisputed that it was raining heavily on the day of the accident, and that there was a mat just inside the front entrance to the store. Said testified at her deposition that store employees were instructed to dry-mop water from the floor every 15 minutes on days it rained. At his deposition, one of Said's employees testified that he mopped water as soon as he observed it. Moreover, the evidence submitted in support of the defendants' motion demonstrated that the employee dry-mopped the area of the floor where the injured plaintiff allegedly fell approximately 15 to 25 minutes before the accident occurred. Said and her employees were not obligated to provide a constant remedy to the problem of water being tracked into the store in rainy weather (see Hickson v. Walgreen Co. , 150 A.D.3d at 1087, 56 N.Y.S.3d 157 ; Ruck v. Levittown Norse Assoc., LLC , 27 A.D.3d at 445, 812 N.Y.S.2d 567 ; Yearwood v. Cushman & Wakefield , 294 A.D.2d 568, 742 N.Y.S.2d 661 ). Further, the defendants demonstrated that the condition was not present for a sufficient period of time for the defendants to have discovered and remedied it, and therefore, there is no basis for an inference that they had constructive notice (see Seung Chul Na v. JP Morgan Chase & Co. , 123 A.D.3d 903, 1 N.Y.S.3d 125 ; Ruck v. Levittown Norse Assoc., LLC , 27 A.D.3d at 445, 812 N.Y.S.2d 567 ). In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).

Accordingly, we agree with the Supreme Court's determination to grant that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against 7–Eleven Incorporated, Southland Corporation, and Said.

RIVERA, J.P., BALKIN, MALTESE and BARROS, JJ., concur.