HALPERN v. COSTCO WAREHOUSE COSTCO WHOLESALE (2012)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Feinman, J.), dated March 2, 2011, 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.

 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 alleged hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Kokin v. Key Food Supermarket, Inc., 90 A.D.3d 850, 935 N.Y.S.2d 66;  Amendola v. City of New York, 89 A.D.3d 775, 932 N.Y.S.2d 172;  Lee v. Port Chester Costco Wholesale, 82 A.D.3d 842, 918 N.Y.S.2d 549).   A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it (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).   In addition, a defendant who has actual knowledge of a particular ongoing and recurring hazardous condition may be charged with constructive notice of each specific reoccurrence of that condition (see Amendola v. City of New York, 89 A.D.3d at 775–776, 932 N.Y.S.2d 172;  Milano v. Staten Is. Univ. Hosp., 73 A.D.3d 1141, 903 N.Y.S.2d 78).

 Here, the defendant established its entitlement to judgment as a matter of law by offering evidence that it neither created the alleged hazardous condition which caused the injured plaintiff's fall, nor had actual or constructive notice of it (see Lee v. Port Chester Costco Wholesale, 82 A.D.3d at 842, 918 N.Y.S.2d 549;  Cusack v. Peter Luger, Inc., 77 A.D.3d 785, 786, 909 N.Y.S.2d 532;  Sloane v. Costco Wholesale Corp., 49 A.D.3d 522, 523, 855 N.Y.S.2d 155).   However, in opposition, the plaintiffs submitted evidence sufficient to raise a triable issue of fact as to whether the defendant can be charged with constructive notice on the theory that it was aware of a particular recurring condition in the area where the accident occurred which it failed to adequately address (see Black v. Kohl's Dept. Stores, Inc., 80 A.D.3d 958, 960–961, 914 N.Y.S.2d 469;  Milano v. Staten Is. Univ. Hosp., 73 A.D.3d at 1142, 903 N.Y.S.2d 78;  Lehr v. Mothers Work, Inc., 73 A.D.3d 564, 903 N.Y.S.2d 345;  Erikson v. J.I.B. Realty Corp., 12 A.D.3d 344, 345–346, 783 N.Y.S.2d 661;  cf. Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 646 N.E.2d 795;  DeJesus v. New York City Hous. Auth., 53 A.D.3d 410, 411, 861 N.Y.S.2d 31, affd. 11 N.Y.3d 889, 873 N.Y.S.2d 259, 901 N.E.2d 752;  Gloria v. MGM Emerald Enters., Inc., 298 A.D.2d 355, 356, 751 N.Y.S.2d 213).   Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.

In light of our determination, we need not reach the plaintiffs' remaining contentions.