ROY v. CITY OF NEW YORK (2009)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated July, 14, 2008, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff, who was employed by the defendant Board of Education of the City of New York as a local instructional superintendent, allegedly slipped and fell on a puddle of water while she was exiting the lobby of P.S. 12k (hereinafter the school) in Brooklyn at 10:45 A.M.   The plaintiff alleged that between 8:30 A.M. and 8:45 A.M. she observed several puddles of water between two mats in the lobby, and that this was the same water she fell on as she was leaving the building, even though she was not sure if the size of the puddles changed.   After the plaintiff commenced this action, the defendants moved for summary judgment dismissing the complaint on the ground that they neither created nor had actual or constructive notice of the hazardous condition.

 “A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” (Bruk v. Razag, Inc., 60 A.D.3d 715, 877 N.Y.S.2d 94, quoting Sloane v. Costco Wholesale Corp., 49 A.D.3d 522, 523, 855 N.Y.S.2d 155;  see Goldman v. Waldbaum, Inc., 248 A.D.2d 436, 437, 669 N.Y.S.2d 669).

 The defendants failed to submit evidence sufficient to establish that they did not have constructive notice of the alleged dangerous condition, since they failed to submit any evidence regarding any particularized or specific inspection or cleaning procedure that they utilized in the area of the plaintiff's fall on the date of the accident (see Bruk v. Razag, Inc., 60 A.D.3d 715, 877 N.Y.S.2d 94;  Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598-599, 869 N.Y.S.2d 222;  Van Dina v. St. Francis Hosp., Roslyn, N.Y., 45 A.D.3d 673, 674, 845 N.Y.S.2d 430;  Britto v. Great Atl. & Pac. Tea Co., Inc., 21 A.D.3d 436, 437, 799 N.Y.S.2d 828).

 Additionally, the evidence submitted by the defendants indicated that the puddles of water existed for almost two hours before the accident, thus demonstrating the existence of a triable issue of fact regarding whether this condition existed for a sufficient length of time for the defendants to discover and remedy it (see Villaurel v. City of New York, 59 A.D.3d 709, 873 N.Y.S.2d 740;  Backer v. Central Parking Sys., 292 A.D.2d 408, 739 N.Y.S.2d 404;  Huth v. Allied Maintenance Corp., 143 A.D.2d 634, 636, 532 N.Y.S.2d 880).

Under these circumstances, it is not necessary to consider the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The defendants' remaining contentions are without merit.