BETANCOURT v. 123 LLC (2024)

Order, Supreme Court, Bronx County (Andrew Cohen, J.), entered September 8, 2023, which, to the extent appealed from as limited by the briefs, denied defendant Open Kitchen 123, LLC's motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

The court should have granted Open Kitchen summary judgment in this action where plaintiff was injured when he slipped and fell on a wet floor after entering the exterior doors to the premises operated by Open Kitchen during an ongoing rainstorm.  Contrary to plaintiff's contention, there is no evidence that Open Kitchen either created the wet condition in the entryway or had notice of a hazard that could have been prevented by the exercise of reasonable care (see Kovelsky v. City Univ. of N.Y., 221 A.D.2d 234, 235, 634 N.Y.S.2d 1 [1st Dept. 1995]).  Open Kitchen satisfied its duty by employing reasonable remedial measures to address the ongoing rainstorm by laying mats in front of the entrance doors and elsewhere throughout the premises (see Polanco v. Newmark & Co. Real Estate, Inc., 172 A.D.3d 602, 101 N.Y.S.3d 40 [1st Dept. 2019];  see also Pomahac v. TrizecHahn 1065 Ave. of Ams., LLC, 65 A.D.3d 462, 464, 884 N.Y.S.2d 402 [1st Dept. 2009]).  There was no active notice in the form of prior complaints received (see Garcia v. Delgado Travel Agency Inc., 4 A.D.3d 204, 771 N.Y.S.2d 646 [1st Dept. 2004]).  Nor did the undisputed fact that it was raining at the time of plaintiff's accident, causing water to be tracked into the premises, constitute constructive notice of a dangerous situation requiring Open Kitchen to cover the entire floor with mats or continuously mop the floor (see id.;  see also Polanco, 172 A.D.3d 602, 101 N.Y.S.3d 40;  Pomahac, 65 A.D.3d at 465, 884 N.Y.S.2d 402;  Kovelsky, 221 A.D.2d at 235, 634 N.Y.S.2d 1).  Moreover, plaintiff testified that that he only noticed water on the floor after his fall, and thus it cannot be inferred that Open Kitchen had constructive notice of “a hazard sufficiently visible as to permit discovery and remedy” (Garcia, 4 A.D.3d 204, 771 N.Y.S.2d 646;  see also Polanco, 172 A.D.3d 602, 101 N.Y.S.3d 40).