AGUILERA v. BJ WHOLESALE CLUB INC (2022)

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about June 16, 2021, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff testified that she was injured when, while entering a stall in the ladies room at defendant's store, she slipped and fell on an unidentified wet substance.  Defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence showing that it did not have actual or constructive notice of the hazardous condition.  Its maintenance worker testified that she worked on the day of plaintiff's accident and followed her set schedule, pursuant to which she would inspect and clean the entire bathroom and each stall twice per hour, which included making sure the floor was not wet, and drying any wet conditions (see Mareneck v. Bohemian Brethern Presbyt. Church, 201 A.D.3d 471, 472, 161 N.Y.S.3d 59 [1st Dept. 2022];  Gomez v. J.C. Penny Corp., Inc., 113 A.D.3d 571, 571–572, 979 N.Y.S.2d 323 [1st Dept. 2014]).

In opposition, plaintiff failed to raise a triable issue of fact.  She submitted no evidence of actual notice and, viewing the record in the light most favorable to plaintiff, defendant had as little as 4 minutes and no more than 30 minutes, to find the condition plaintiff slipped on and remediate it, which is “an insufficient period of time to charge defendant with having constructive notice” (Frederick v. New York City Hous. Auth., 172 A.D.3d 545, 545, 100 N.Y.S.3d 258 [1st Dept. 2019];  see Pagan v. New York City Hous. Auth., 121 A.D.3d 622, 623, 996 N.Y.S.2d 10 [1st Dept. 2014]).