GWYN v. Initial Cleaning, third-party defendant-respondent. (2004)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kelly, J.), dated April 16, 2003, which granted that branch of the motion of the third-party defendant which was for summary judgment dismissing the third-party complaint, granted that branch of the cross motion of the defendants which was for summary judgment dismissing the complaint, and denied his cross motion to strike the defendants' answer.

ORDERED that the appeal from so much of the order as granted that branch of the motion of the third-party defendant which was for summary judgment dismissing the third-party complaint is dismissed, as the plaintiff is not aggrieved by that portion of the order (see CPLR 5511);  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

 To make out a prima facie case of negligence in a slip-and-fall case, a plaintiff must demonstrate that a defendant either created or had actual or constructive notice of the condition that caused the accident (see Madrid v. City of New York, 42 N.Y.2d 1039, 399 N.Y.S.2d 205, 369 N.E.2d 761;  Izrailova v. Rego Realty, 309 A.D.2d 902, 766 N.Y.S.2d 91;  Anderson v. Central Val. Realty Co., 300 A.D.2d 422, 751 N.Y.S.2d 586;  Rivas v. 525 Bldg. Co., 293 A.D.2d 733, 734-735, 742 N.Y.S.2d 83;  Schortemeyer v. K-Mart Corp., 272 A.D.2d 391, 707 N.Y.S.2d 495).

 The defendants made a prima facie showing of entitlement to judgment as a matter of law by presenting proof that they neither created nor had actual or constructive notice of the wet condition that allegedly caused the plaintiff to fall (see Seneglia v. FPL Foods, 273 A.D.2d 221, 709 N.Y.S.2d 842).   In opposition, the plaintiff's contentions that the defendants created the hazardous condition by mopping or hosing down the floor where he fell three hours prior to his accident (see Glacy v. 1109 Manhattan Ave. Hous. Dev. Fund Corp., 8 A.D.3d 227, 777 N.Y.S.2d 662), or that the wet condition was caused by a nearby garden hose or slop sink (see Weising v. Fairfield Props., 6 A.D.3d 427, 774 N.Y.S.2d 351;  Picerno v. New York City Tr. Auth., 4 A.D.3d 349, 771 N.Y.S.2d 549;  Pomerantz v. Culinary Inst. of Am., 2 A.D.3d 821, 770 N.Y.S.2d 424), were speculative and thus insufficient to raise a triable issue of fact.   In any event, there was no proof that the defendants, rather than their cleaning contractor, mopped the floor on the morning of the accident.  “[G]enerally, one who engages an independent contractor is not liable for the latter's negligence in performance” (Pannone v. Burke, 149 A.D.2d 673, 675, 540 N.Y.S.2d 313;  see Chainani v. Board of Educ. of City of N.Y., 201 A.D.2d 693, 695-696, 608 N.Y.S.2d 283, affd. 87 N.Y.2d 370, 639 N.Y.S.2d 971, 663 N.E.2d 283;  cf. Thomassen v. J & K Diner, 152 A.D.2d 421, 549 N.Y.S.2d 416).

 Moreover, the plaintiff failed to raise a triable issue of fact as to the length of time the wet condition existed, or whether it was visible and apparent, and thus did not satisfy the elements of constructive notice (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837-838, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Bluman v. Freeport Union Free School Dist., 5 A.D.3d 341, 772 N.Y.S.2d 527;  Izrailova v. Rego Realty, supra;  Lynch v. Middle Country Cent. School Dist., 283 A.D.2d 404, 724 N.Y.S.2d 83).   Accordingly, the Supreme Court properly granted that branch of the cross motion of the defendants which was for summary judgment dismissing the complaint.

The Supreme Court also properly denied the plaintiff's cross motion to strike the defendants' answer (see Decavallas v. Pappantoniou, 300 A.D.2d 617, 752 N.Y.S.2d 712;  Mohammed v. 919 Park Place Owners Corp., 245 A.D.2d 351, 352, 665 N.Y.S.2d 435).

In light of the foregoing, we do not reach the parties' remaining contentions.