DENISE BRENNAN PLAINTIFF APPELLANT v. KANDON LLC AND COL JAC LLC DEFENDANTS RESPONDENTS (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the complaint except insofar as it alleges that defendants were negligent in failing to warn plaintiff of a dangerous condition, and as modified the order is affirmed without costs.

Memorandum: In this action to recover damages for injuries plaintiff allegedly sustained when she slipped and fell on a wet floor at a restaurant owned and operated by defendants, plaintiff appeals from an order granting defendants’ motion for summary judgment dismissing the complaint.

Contrary to plaintiff's contention, we conclude that Supreme Court did not err in granting that part of defendants’ motion with respect to plaintiff's claim that defendants were negligent in failing to warn of a dangerous condition (see DelRosario v Liverpool Lodging, LLC, 170 AD3d 1595, 1596 [4th Dept 2019]). We agree with plaintiff, however, that the court erred in granting that part of the motion with respect to plaintiff's claim that defendants failed to maintain the premises in a reasonably safe condition, and we therefore modify the order accordingly. With respect to those allegations, defendants had the initial burden on their motion of establishing that they did not create the allegedly dangerous condition and that they did not have actual or constructive notice thereof (see Pelow v Tri-Main Dev., 303 AD2d 940, 940-941 [4th Dept 2003]; see also Dolinar v Kaleida Health, 155 AD3d 1576, 1577 [4th Dept 2017]; Rivers v May Dept. Stores Co., 11 AD3d 963, 963 [4th Dept 2004]). We conclude that defendants failed to meet that burden inasmuch as they failed to establish that they did not create the allegedly dangerous condition by negligently mopping the area and leaving excess water on the floor (see Brown v Simone Dev. Co., L.L.C., 83 AD3d 544, 544-545 [1st Dept 2011]; Leone v County of Monroe, 284 AD2d 975, 975 [4th Dept 2001]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Contrary to the court's conclusion, the holding in Rivero v Spillane Enters., Corp. (95 AD3d 984 [2d Dept 2012]) does not compel a different result (see Valentin v New Docs, LLC, 186 AD3d 1570, 1571 [2d Dept 2020]; DelRosario, 170 AD3d at 1596). Failure to warn of an alleged hazard is a separate and distinct theory of liability from the failure to maintain premises in a reasonably safe condition, and a plaintiff may proceed on one or both of those theories (see Valentin, 186 AD3d at 1571; Sniatecki v Violet Realty, Inc., 98 AD3d 1316, 1318-1319 [4th Dept 2012]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court