YARMAK v. LSS LEASING CORP (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Robin K. Sheares, J.), dated August 18, 2022.  The order denied the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In 2017, the plaintiff commenced this action against the defendants to recover damages for personal injuries that she allegedly sustained on a snowy day in January 2015, when she slipped and fell on water in the lobby of the defendants’ building.  In an order dated August 18, 2022, the Supreme Court denied the defendants’ motion for summary judgment dismissing the complaint.  The defendants appeal.

Although not required to cover all of its floors with mats, or to continuously mop up all moisture resulting from tracked-in precipitation (see Vinokurova v. Edith & Carl Jewish Community House of Bensonhurst, Inc., 212 A.D.3d 751, 752, 183 N.Y.S.3d 124;  Dubensky v. 2900 Westchester Co., LLC, 27 A.D.3d 514, 813 N.Y.S.2d 117), a defendant may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a building if it either created the hazardous condition or had actual or constructive notice of the condition and a reasonable time to undertake remedial action (see Vinokurova v. Edith & Carl Jewish Community House of Bensonhurst, Inc., 212 A.D.3d at 752, 183 N.Y.S.3d 124;  Mentasi v. Eckerd Drugs, 61 A.D.3d 650, 651, 877 N.Y.S.2d 149).  “To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” (Rivera v. Roman Catholic Archdiocese of N.Y., 197 A.D.3d 744, 745, 153 N.Y.S.3d 164 [internal quotation marks omitted];  see Jordan v. Juncalito Abajo Meat Corp., 131 A.D.3d 1012, 1012–1013, 16 N.Y.S.3d 278).  “ ‘Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice’ ” (Butts v. SJF, LLC, 171 A.D.3d 688, 689, 97 N.Y.S.3d 219, quoting Herman v. Lifeplex, LLC, 106 A.D.3d 1050, 1051, 966 N.Y.S.2d 473).

Here, the evidence submitted by the defendants in support of their motion failed to demonstrate, prima facie, that they lacked constructive notice of the alleged dangerous condition that caused the plaintiff to fall.  The defendants’ building supervisor provided information only as to the building's general cleaning and inspection practices, and the defendants did not proffer any evidence demonstrating when the lobby was last cleaned or inspected before the accident (see Vinokurova v. Edith & Carl Jewish Community House of Bensonhurst, Inc., 212 A.D.3d at 752, 183 N.Y.S.3d 124;  Jordan v. Juncalito Abajo Meat Corp., 131 A.D.3d at 1013, 16 N.Y.S.3d 278;  Osbourne v. 80–90 Maiden Lane Del, LLC, 112 A.D.3d 898, 899, 978 N.Y.S.2d 87).

Since the defendants did not sustain their prima facie burden of establishing their entitlement to judgment as a matter of law, 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 contention is without merit.

DUFFY, J.P., IANNACCI, CHRISTOPHER and VOUTSINAS, JJ., concur.