HALE v. WILMORITE INC (2006)

Plaintiff commenced this action seeking damages for personal injuries sustained by her in a slip and fall on premises allegedly owned by defendant Wilmorite, Inc. and managed by defendant Genesee Management, Inc.   In appeal No. 1, plaintiff appeals from a judgment and order granting defendants' motion for a directed verdict dismissing the complaint with prejudice at the close of proof for plaintiff's failure to make out a prima facie case of negligence (see CPLR 4401).   In appeal No. 2, plaintiff appeals from a subsequent order denying her motion for leave to reargue the motion for a directed verdict.   Because no appeal lies from an order denying a motion for leave to reargue (see Empire Ins. Co. v. Food City, 167 A.D.2d 983, 984, 562 N.Y.S.2d 5), appeal No. 2 must be dismissed.

 With respect to appeal No. 1, we conclude that Supreme Court properly directed a verdict in favor of defendants.   The record is devoid of any evidence of actual notice of the wet condition to defendants and the lapse of a reasonable time for them to correct the condition or warn about its existence (see Mercer v. City of New York, 88 N.Y.2d 955, 956, 647 N.Y.S.2d 159, 670 N.E.2d 443, citing Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246, 249, 472 N.Y.S.2d 368, affd. for reasons stated 64 N.Y.2d 670, 485 N.Y.S.2d 252, 474 N.E.2d 612).   Further, the record is lacking in any evidence from which constructive notice might be inferred (see Hammer v. KMart Corp., 267 A.D.2d 1100, 700 N.Y.S.2d 345, lv. denied 95 N.Y.2d 757, 713 N.Y.S.2d 1, 734 N.E.2d 1212;  see generally 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).   Although a plaintiff is not required to prove that the defendants knew or should have known of the existence of a particular defect where they had actual notice of a recurrent dangerous condition in that location (see Chrisler v. Spencer, 31 A.D.3d 1124, 1125, 817 N.Y.S.2d 835;  Hammer, 267 A.D.2d at 1100, 700 N.Y.S.2d 345;  Camizzi v. Tops, Inc., 244 A.D.2d 1002, 664 N.Y.S.2d 964), here there is no evidence from which it might be inferred that there was in fact a “recurring dangerous condition in the area of the slip and fall that was routinely left unaddressed” (Solazzo v. New York City Tr. Auth., 21 A.D.3d 735, 736, 800 N.Y.S.2d 698, affd. 6 N.Y.3d 734, 810 N.Y.S.2d 121, 843 N.E.2d 748).   A “general awareness that [an area may] become wet during inclement weather [is] insufficient to establish constructive notice of the specific condition causing plaintiff's injury” (Solazzo, 6 N.Y.3d at 735, 810 N.Y.S.2d 121, 843 N.E.2d 748, citing Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 646 N.E.2d 795).   Moreover, the “evidence concerning the putting down of mats [does not] tend to show a recurring dangerous condition in the particular area where plaintiff fell” (Solazzo, 21 A.D.3d at 737, 800 N.Y.S.2d 698;  see Keum Choi v. Olympia & York Water St. Co., 278 A.D.2d 106, 107, 718 N.Y.S.2d 42).

It is hereby ORDERED that the judgment and order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: