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Yarosh v. Oceana Holding Corp.

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
May 15, 2019
172 A.D.3d 1142 (N.Y. App. Div. 2019)

Opinion

2018–03913 Index No. 3791/15

05-15-2019

Raisa YAROSH, Respondent, v. OCEANA HOLDING CORP., et al., Appellants.

Correia, King, Fodera, McGinnis & Liferiedge (Mauro Lilling Naparty LLP, Woodbury, N.Y. [Anthony F. DeStefano and Catherine R. Everett ], of counsel), for appellants. William Pager, Brooklyn, N.Y., for respondent.


Correia, King, Fodera, McGinnis & Liferiedge (Mauro Lilling Naparty LLP, Woodbury, N.Y. [Anthony F. DeStefano and Catherine R. Everett ], of counsel), for appellants.

William Pager, Brooklyn, N.Y., for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Devin P. Cohen, J.), dated January 31, 2018. The order denied the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

On February 21, 2015, at about 7:00 p.m., the plaintiff allegedly slipped and fell on snow on the marble tile floor of the vestibule of the defendants' supermarket in Brooklyn. The plaintiff commenced this personal injury action against the defendants. Subsequently, 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 the condition. The Supreme Court denied the motion, and the defendants appeal. A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it (see Blazejewski v. New York City Dept. of Educ., 144 A.D.3d 851, 852, 40 N.Y.S.3d 791 ; Murray v. Banco Popular, 132 A.D.3d 743, 744, 18 N.Y.S.3d 92 ; Beceren v. Joan Realty, LLC, 124 A.D.3d 572, 2 N.Y.S.3d 155 ). While a defendant is not required to cover all of its floors with mats, or to continuously mop up all moisture resulting from tracked-in precipitation (see Paduano v. 686 Forest Ave., LLC, 119 A.D.3d 845, 989 N.Y.S.2d 379 ; Curtis v. Dayton Beach Park No. 1 Corp., 23 A.D.3d 511, 512, 806 N.Y.S.2d 664 ; Negron v. St. Patrick's Nursing Home, 248 A.D.2d 687, 671 N.Y.S.2d 275 ), a defendant may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial action (see Mentasi v. Eckerd Drugs, 61 A.D.3d 650, 651, 877 N.Y.S.2d 149 ; Ruic v. Roman Catholic Diocese of Rockville Ctr., 51 A.D.3d 1000, 1001, 858 N.Y.S.2d 761 ).

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create the alleged hazardous condition in the vestibule or have actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied it (see Blazejewski v. New York City Dept. of Educ., 144 A.D.3d at 852, 40 N.Y.S.3d 791 ; Murray v. Banco Popular, 132 A.D.3d at 744, 18 N.Y.S.3d 92 ; Beceren v. Joan Realty, LLC, 124 A.D.3d at 573, 2 N.Y.S.3d 155 ; Paduano v. 686 Forest Ave., LLC, 119 A.D.3d at 845–846, 989 N.Y.S.2d 379 ). In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.

BALKIN, J.P., CHAMBERS, COHEN and BRATHWAITE NELSON, JJ., concur.


Summaries of

Yarosh v. Oceana Holding Corp.

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
May 15, 2019
172 A.D.3d 1142 (N.Y. App. Div. 2019)
Case details for

Yarosh v. Oceana Holding Corp.

Case Details

Full title:Raisa Yarosh, respondent, v. Oceana Holding Corp., et al., appellants.

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: May 15, 2019

Citations

172 A.D.3d 1142 (N.Y. App. Div. 2019)
101 N.Y.S.3d 72
2019 N.Y. Slip Op. 3842

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