RUSSO v. Amherst Orthopedic Therapy Association, Defendant-Respondent.  (Appeal No. 1.) (2004)

Supreme Court erred in granting defendants' motions seeking summary judgment dismissing the complaint.   Plaintiff commenced this action seeking damages for injuries that she sustained when she slipped and fell in the hallway of a facility owned by defendant YMCA of Greater Buffalo (YMCA) after attending a water therapy session conducted by defendant Amherst Orthopedic Therapy Association (AOTA).   Viewing the evidence in the light most favorable to the nonmoving party, as we must (see Victor Temporary Servs. v. Slattery, 105 A.D.2d 1115, 1117, 482 N.Y.S.2d 623), we conclude that there are issues of fact that preclude summary judgment (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).   In support of their motions, defendants submitted the deposition testimony of plaintiff in which she stated that, although before she fell she did not observe what caused her to fall, she observed water on the floor after she fell.   We conclude that there are issues of fact whether defendants had constructive notice of a wet condition of the hallway and failed to take proper precautions or to warn patrons of that alleged condition (see generally Tagle v. Jakob, 97 N.Y.2d 165, 168, 737 N.Y.S.2d 331, 763 N.E.2d 107;   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).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint against defendant Amherst Orthopedic Therapy Association is reinstated.

MEMORANDUM: