KING v. DAMIANO CORP OF CANARSIE (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Richard J. Montelione, J.), dated July 16, 2024.  The order denied the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when, on a rainy night, she slipped and fell on a wet vestibule floor of the defendant's restaurant.  The defendant moved for summary judgment dismissing the complaint.  In an order dated July 16, 2024, the Supreme Court denied the defendant's motion.  The defendant appeals.

“In a slip-and-fall case, a defendant property owner 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 Murray v. Banco Popular, 132 A.D.3d 743, 744, 18 N.Y.S.3d 92).  While a “defendant [is] not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain” (Negron v. St. Patrick's Nursing Home, 248 A.D.2d 687, 687, 671 N.Y.S.2d 275;  see Beceren v. Joan Realty, LLC, 124 A.D.3d 572, 2 N.Y.S.3d 155;  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 Mentasi v. Eckerd Drugs, 61 A.D.3d 650, 651, 877 N.Y.S.2d 149;  Ruic v. Roman Catholic Diocese of Rockville Ctr., 51 A.D.3d 1000, 1001, 858 N.Y.S.2d 761;  Williams v. JP Morgan Chase & Co., 39 A.D.3d 852, 853, 834 N.Y.S.2d 310).  “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;  Fortune v. Western Beef, Inc., 178 A.D.3d 671, 672, 115 N.Y.S.3d 93).  “ ‘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;  see Vinokurova v. Edith & Carl Marks Jewish Community House of Bensonhurst, Inc., 212 A.D.3d at 752, 183 N.Y.S.3d 124;  Giantomaso v. T. Weiss Realty Corp., 142 A.D.3d 950, 951, 37 N.Y.S.3d 313).

Here, the evidence submitted by the defendant in support of its motion failed to demonstrate, prima facie, that it lacked constructive notice of the alleged dangerous condition that caused the plaintiff to fall.  The defendant did not proffer any evidence demonstrating when the vestibule floor was last cleaned or inspected before the accident (see Hussain v. Neurology Continuum, P.C., 226 A.D.3d 987, 988, 209 N.Y.S.3d 541;  Yarmak v. LSS Leasing Corp., 219 A.D.3d 1472, 1472–1473, 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).

Since the defendant did not sustain its prima facie burden of establishing its 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 parties’ remaining contentions are without merit.

Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.

DILLON, J.P., BRATHWAITE NELSON, WARHIT and LOVE, JJ., concur.