ZERILLI v. WESTERN BEEF RETAIL INC (2010)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Kitzes, J.), entered December 29, 2008, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In a slip-and-fall case, the defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the alleged hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Perlongo v. Park City 3 & 4 Apts., Inc., 31 A.D.3d 409, 818 N.Y.S.2d 158; Murphy v. Lawrence Towers Apts., LLC, 15 A.D.3d 371, 789 N.Y.S.2d 532; Ford v. Citibank, N.A., 11 A.D.3d 508, 783 N.Y.S.2d 622). Here, the defendant met its initial burden as the movant (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718; Miller v. Gimbel Bros., 262 N.Y. 107, 186 N.E. 410). There was no evidence that the defendant created the the alleged wet condition, and it “was 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 Rogers v. Rockefeller Group Intl., Inc., 38 A.D.3d 747, 832 N.Y.S.2d 600; Dubensky v. 2900 Westchester Co., LLC, 27 A.D.3d 514, 813 N.Y.S.2d 117; Yearwood v. Cushman & Wakefield, 294 A.D.2d 568, 742 N.Y.S.2d 661). Further, the defendant demonstrated that it had no actual notice of the alleged wet condition. Moreover, as there was no evidence that the condition complained of was present for a sufficient period of time for the defendant to have discovered and remedied it, there was no basis for an inference that the defendant had constructive notice of the condition (see Yacovelli v. Pathmark Stores, Inc., 67 A.D.3d 1002, 888 N.Y.S.2d 750; Ruck v. Levittown Norse Assoc., LLC, 27 A.D.3d 444, 812 N.Y.S.2d 567; see also Sloane v. Costco Wholesale Corp., 49 A.D.3d 522, 855 N.Y.S.2d 155; Dwoskin v. Burger King Corp., 249 A.D.2d 358, 671 N.Y.S.2d 494).

In opposition, the plaintiffs failed to submit evidence sufficient to raise a triable issue of fact as to whether the defendant had actual notice of a recurring hazardous condition such that it could be charged with constructive notice of the alleged wet condition which caused the injured plaintiff to fall (see Yearwood v. Cushman & Wakefield, 294 A.D.2d at 569, 742 N.Y.S.2d 661; cf. Erikson v. J.I.B. Realty Corp., 12 A.D.3d 344, 783 N.Y.S.2d 661; Osorio v. Wendell Terrace Owners Corp. ., 276 A.D.2d 540, 714 N.Y.S.2d 116; Weisenthal v. Pickman, 153 A.D.2d 849, 545 N.Y.S.2d 369). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.