AMENDOLA v. CITY OF NEW YORK (2011)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kerrigan, J.), dated August 6, 2010, which granted the defendant's motion for summary judgment dismissing the complaint.

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

The plaintiff allegedly slipped and fell on grease on the steps of a trailer which housed a workers' locker room.   The trailer was located inside an enclosed sanitation garage.   The defendant, City of New York, moved for summary judgment dismissing the complaint, contending that it did not create or have actual or constructive notice of the alleged hazardous condition.   The Supreme Court granted the motion.   We reverse.

 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 hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Schiano v. Mijul, Inc., 79 A.D.3d 726, 912 N.Y.S.2d 134;  Walsh v. Super Value, Inc., 76 A.D.3d 371, 904 N.Y.S.2d 121;  Gambino v. City of New York, 60 A.D.3d 627, 877 N.Y.S.2d 91).  “To meet its initial burden on the issue 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” (Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598–599, 869 N.Y.S.2d 222;  see Mei Xiao Guo v. Quong Big Realty Corp., 81 A.D.3d 610, 916 N.Y.S.2d 155).   Additionally, a defendant who has actual knowledge of an ongoing and recurring dangerous condition may be charged with constructive notice of each specific reoccurrence of the condition (see Milano v. Staten Is. Univ. Hosp., 73 A.D.3d 1141, 903 N.Y.S.2d 78;  Kohout v. Molloy Coll., 61 A.D.3d 640, 876 N.Y.S.2d 505;  Brown v. Linden Plaza Hous. Co., Inc., 36 A.D.3d 742, 829 N.Y.S.2d 571;  Roussos v. Ciccotto, 15 A.D.3d 641, 792 N.Y.S.2d 501).   A general awareness of a condition, however, is insufficient to constitute constructive notice of the specific condition that caused the plaintiff to fall (see Kostic v. Ascent Media Group, LLC, 79 A.D.3d 818, 912 N.Y.S.2d 445;  Mauge v. Barrow St. Ale House, 70 A.D.3d 1016, 895 N.Y.S.2d 499;  Panetta v. Phoenix Beverages, Inc., 29 A.D.3d 659, 816 N.Y.S.2d 122).   A defendant cannot satisfy its initial burden as the movant merely by pointing to gaps in the plaintiff's case (see McPhaul v. Mutual of Am. Life Ins. Co., 81 A.D.3d 609, 915 N.Y.S.2d 870;  Davranov v. 470 Realty Assoc., LLC, 79 A.D.3d 697, 911 N.Y.S.2d 912;  Edwards v. Great Atl. & Pac. Tea Co., Inc., 71 A.D.3d 721, 895 N.Y.S.2d 723).

 Here, the defendant failed to meet its prima facie burden of establishing its entitlement to judgment as a matter of law and, therefore, the Supreme Court should have denied its motion for summary judgment dismissing the complaint.   Given the location of the accident site, the defendant failed to establish, prima facie, that the greasy substance was not created by its employees (see Brown v. Outback Steakhouse, 39 A.D.3d 450, 833 N.Y.S.2d 222;  Kelly v. Media Serv. Corp., 304 A.D.2d 717, 757 N.Y.S.2d 781;  Hopkins v. Statewide Indus. Catering Group, 272 A.D.2d 577, 710 N.Y.S.2d 81).   The defendant also failed to submit any evidence as to when the subject staircase was last cleaned or inspected.   Hence, it failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition (see Gray v. Lifetitz, 83 A.D.3d 780, 920 N.Y.S.2d 693;  Alston v. Starrett City Assoc., 72 A.D.3d 711, 898 N.Y.S.2d 859;  Pryzywalny v. New York City Tr. Auth., 69 A.D.3d 598, 892 N.Y.S.2d 181).   Moreover, the defendant's submissions failed to eliminate all triable issues of fact as to whether it had actual notice of a reoccurring hazardous condition which routinely went unaddressed (see Milano v. Staten Is. Univ. Hosp., 73 A.D.3d 1141, 903 N.Y.S.2d 78;  Kohout v. Molloy Coll., 61 A.D.3d 640, 876 N.Y.S.2d 505;  Brown v. Linden Plaza Hous. Co., Inc., 36 A.D.3d 742, 829 N.Y.S.2d 571;  Roussos v. Ciccotto, 15 A.D.3d 641, 792 N.Y.S.2d 501).   Since the defendant failed to meet its initial burden as the movant, we need not review the sufficiency of the plaintiff's opposition papers (see Britto v. Great Atl. & Pac. Tea Co., Inc., 21 A.D.3d 436, 799 N.Y.S.2d 828;  Joachim v. 1824 Church Ave., Inc., 12 A.D.3d 409, 784 N.Y.S.2d 157).