WEEMAN v. ROUSE SI SHOPPING CENTER LLC (2010)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (McMahon, J.), dated April 8, 2008, which granted the separate motions of the defendants Rouse SI Shopping Center, LLC, and ABCO Maintenance, Inc., for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed, with one bill of costs to the respondents.

The plaintiff allegedly was injured when she tripped over a wire coat hanger in a parking lot owned by the defendant Rouse SI Shopping Center, LLC (hereinafter Rouse SI).   Thereafter, she commenced this action against, among others, Rouse SI and the defendant ABCO Maintenance, Inc. (hereinafter ABCO), a company hired by Rouse SI to sweep the parking lot at night.   Rouse SI moved for summary judgment dismissing the complaint insofar as asserted against it, and ABCO separately moved for the same relief.

 “A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” (Van Dina v. St. Francis Hosp., Roslyn, N.Y., 45 A.D.3d 673, 674, 845 N.Y.S.2d 430;  see Richards v. Passarelli, 77 A.D.3d 905, 910 N.Y.S.2d 500;  Torre v. Huguenot Props., Inc., 77 A.D.3d 732, 909 N.Y.S.2d 479).   Rouse SI established its prima facie entitlement to judgment as a matter of law by demonstrating that it neither created nor had actual or constructive notice of the condition alleged by the plaintiff to have caused the accident (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Torre v. Huguenot Props., Inc., 77 A.D.3d 732, 909 N.Y.S.2d 479;  Castrogivanni v. Target Stores, 4 A.D.3d 446, 446–447, 771 N.Y.S.2d 697;  Pianforini v. Kelties Bum Steer, 258 A.D.2d 634, 635, 685 N.Y.S.2d 804;  Kalogerides v. Citibank, 233 A.D.2d 298, 649 N.Y.S.2d 806;  Bykofsky v. Waldbaum's Supermarkets, 210 A.D.2d 280, 281, 619 N.Y.S.2d 760).   In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact.   Any finding that the coat hanger had been on the ground for an appreciable period of time sufficient to charge Rouse SI with constructive notice would be speculative (see Green v. City of New York, 34 A.D.3d 528, 529, 825 N.Y.S.2d 227;  Price v. EQK Green Acres, 275 A.D.2d 737, 738, 713 N.Y.S.2d 488;  Doherty v. Great Atl. & Pac. Tea Co., 265 A.D.2d 447, 448, 696 N.Y.S.2d 236;  Pianforini v. Kelties Bum Steer, 258 A.D.2d at 635, 685 N.Y.S.2d 804;  Katsoris v. Waldbaum, Inc., 241 A.D.2d 511, 512, 663 N.Y.S.2d 984).

 Furthermore, in response to ABCO's prima facie showing that it assumed no duty to the plaintiff by virtue of its limited contract with Rouse SI to sweep the parking lot, the plaintiff failed to raise a triable issue of fact as to the existence of a duty (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 746 N.Y.S.2d 120, 773 N.E.2d 485;  Wheaton v. East End Commons Assoc., LLC, 50 A.D.3d 675, 677, 854 N.Y.S.2d 528;  Castrogivanni v. Target Stores, 4 A.D.3d at 446–447, 771 N.Y.S.2d 697;  Baratta v. Home Depot USA, 303 A.D.2d 434, 434–435, 756 N.Y.S.2d 605;  Bugiada v. Iko, 274 A.D.2d 368, 369, 710 N.Y.S.2d 117;  Riekers v. Gold Coast Plaza, 255 A.D.2d 373, 374, 679 N.Y.S.2d 709).

Accordingly, the Supreme Court properly granted the separate motions of Rouse SI and ABCO for summary judgment dismissing the complaint insofar as asserted against each of them.