LOVE v. CHANG LI SUPERMARKET INC (2026)

.2025–08099

2026–00993

Harris Keenan & Goldfarb PLLC, New York (Jason Steinberg of counsel), for appellant.

Ropers Majeski PC, New York (Christopher J. Gioia of counsel), for respondents.

Order, Supreme Court, Bronx County (Mary Lynn Nicolas–Brewster, J.), entered on or about December 12, 2025, which granted the motion of defendant Tompkins Management Corp. for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, the motion denied, and the complaint reinstated.

Order, same court and Justice, entered February 25, 2026, which denied plaintiff's motion for summary judgment on the issue of liability as against defendant Chang Li Supermarket, Inc. and to strike Chang Li's affirmative defenses of comparative negligence, unanimously affirmed, without costs.

Supreme Court should have denied the motion of Tompkins Management for summary judgment dismissing the complaint because Tompkins Management, an out-of-possession landlord, failed to establish prima facie that it was not contractually obligated to repair or maintain the premises (see Thomas v. Triboro Maintenance Corp., 223 AD3d 582, 582–583 [1st Dept 2024] ).  The lease between Tompkins Management and its tenant Chang Li imposed the duty to make structural repairs to the premises, including repairs to the roof, on Tompkins Management, and Tompkins Management failed to establish that a leak in the roof did not create the puddle on which plaintiff slipped and fell (see Hakim v. 65 Eighth Ave., LLC, 42 AD3d 374, 374 [1st Dept 2007] ).  In any event, plaintiff raised a triable issue of fact with her testimony that water was dripping from the ceiling when she fell, and that photographs of missing and water-stained ceiling tiles accurately depicted the area above where she fell.  Moreover, evidence in the record indicates that Tompkins Management had previously repaired the roof for leaks prior to plaintiff's accident.

Plaintiff's motion for summary judgment on the issue of liability against Chang Li was properly denied because triable issues of fact exist as to whether Chang Li had actual or constructive notice of the puddle.  Surveillance video did not prove that the supermarket's manager saw the puddle, nor did it prove that the puddle was there for a sufficient time to establish constructive notice as a matter of law (see Rose v. Da Ecib USA, 259 A.D.2d 258, 260 [1st Dept 1999] ).  The supermarket's manager stated in an affirmation that he did not see any leaks emanating from the ceiling above where plaintiff slipped and fell when he walked through the store shortly before the accident.  Even assuming the admissibility of the complaint and deposition from another action wherein a diffrent plaintiff alleged that she slipped and fell in defendant's store four years before the subject accident, the circumstances of that prior action do not establish notice as a matter of law in this action (see Nyambuu v Whole Foods Mkt. Group, Inc., 191 AD3d 580, 581 [1st Dept 2021] ).

Supreme Court correctly declined to strike Chang Li's affirmative defenses of comparative negligence as the issue of whether plaintiff was comparatively negligent for failing to see the puddle is for the jury to consider (see Yanky v 2839 Bainbridge Ave. Assoc., LLC, 234 AD3d 583, 584 [1st Dept 2025] ).