JOHNSON v. 2525 2537 REALTY LLC (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated February 27, 2024.  The order granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is denied.

The plaintiff commenced this action against the defendants to recover damages for personal injuries he allegedly sustained when he slipped and fell on a wet interior staircase on property owned by the defendants.  The defendants moved for summary judgment dismissing the complaint, contending, inter alia, that they maintained their property in a reasonably safe condition.  The plaintiff opposed the motion.  In an order dated February 27, 2024, the Supreme Court granted the motion.  The plaintiff appeals.

In a slip-and-fall case, a defendant moving for summary judgment “has the burden of making a prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence” (Parietti v. Wal–Mart Stores, Inc., 29 N.Y.3d 1136, 1137, 61 N.Y.S.3d 523, 83 N.E.3d 853;  see Jordan v. Juncalito Abajo Meat Corp., 131 A.D.3d 1012, 1013, 16 N.Y.S.3d 278).  “Although not required to cover all of its floors with mats, or to continuously mop up all moisture resulting from tracked-in precipitation, 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” (Yarmak v. LSS Leasing Corp., 219 A.D.3d 1472, 1472, 196 N.Y.S.3d 169 [citations omitted]).  “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 Vinokurova v. Edith & Carl Marks Jewish Community House of Bensonhurst, Inc., 212 A.D.3d 751, 752, 183 N.Y.S.3d 124).  “ ‘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 allegedly dangerous condition that caused the plaintiff to fall.  The defendants’ property manager provided information only as to the building's general cleaning and inspection practices, and the defendants did not proffer any evidence demonstrating when the staircase was last cleaned or inspected before the plaintiff slipped and fell (see Yarmak v. LSS Leasing Corp., 219 A.D.3d at 1473, 196 N.Y.S.3d 169;  Vinokurova v. Edith & Carl Marks Jewish Community House of Bensonhurst, Inc., 212 A.D.3d at 752, 183 N.Y.S.3d 124).  Contrary to the defendants’ contention, their expert affidavit was insufficient to establish, prima facie, that the plaintiff was solely at fault in causing the slip and fall (see Pomilla v. Bangiyev, 197 A.D.3d 1187, 1188, 151 N.Y.S.3d 372;  Episcopal Diocese of Long Is. v. St. Matthias Nondenominational Ministries, Inc., 157 A.D.3d 769, 771, 69 N.Y.S.3d 664).

The defendants’ remaining contentions are either without merit or improperly raised for the first time on appeal.

Since the defendants failed to meet their initial burden as the movants, the Supreme Court should have denied their motion for summary judgment dismissing the complaint without regard to 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).

DUFFY, J.P., MILLER, TAYLOR and HOM, JJ., concur.