GUERRERO v. VAN SINDEREN PLAZA HOUSING DEVELOPMENT FUND CORPORATION (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Richard J. Montelione, J.), dated May 17, 2024.  The order, insofar as appealed from, granted those branches of the motion of the defendants Van Sinderen Plaza Housing Development Fund Corporation, Van Sinderen Plaza, LLC, Van Sinderen Plaza Commercial, LLC, Van Sinderen Plaza Manager, LLC, MacQuesten Van Sinderen Plaza, LLC, Van Sinderen Plaza Condominium, MacQuesten Development, LLC, MacQuesten Construction Management, LLC, East Brooklyn Housing Development Corporation, and Local Development Corporation of East New York, and the cross-motion of the defendant LRC Construction, LLC, which were for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and those branches of the motion of the defendants Van Sinderen Plaza Housing Development Fund Corporation, Van Sinderen Plaza, LLC, Van Sinderen Plaza Commercial, LLC, Van Sinderen Plaza Manager, LLC, MacQuesten Van Sinderen Plaza, LLC, Van Sinderen Plaza Condominium, MacQuesten Development, LLC, MacQuesten Construction Management, LLC, East Brooklyn Housing Development Corporation, and Local Development Corporation of East New York, and the cross-motion of the defendant LRC Construction, LLC, which were for summary judgment dismissing the complaint insofar as asserted against each of them are denied.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained on July 24, 2020, at approximately 8:30 a.m., when she slipped and fell on water in a covered pedestrian walkway at a construction project on premises located in Brooklyn.  The premises allegedly were owned, operated, and/or controlled by the defendants Van Sinderen Plaza Housing Development Fund Corporation, Van Sinderen Plaza, LLC, Van Sinderen Plaza Commercial, LLC, Van Sinderen Plaza Manager, LLC, MacQuesten Van Sinderen Plaza, LLC, Van Sinderen Plaza Condominium, MacQuesten Development, LLC, MacQuesten Construction Management, LLC, East Brooklyn Housing Development Corporation, and Local Development Corporation of East New York (hereinafter collectively the Van Sinderen/MacQuesten defendants), and the defendant LRC Construction, LLC (hereinafter LRC), served as the construction manager on the project.

The Van Sinderen/MacQuesten defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them, and LRC cross-moved, among other things, for summary judgment dismissing the complaint insofar as asserted against it.  The Van Sinderen/MacQuesten defendants and LRC argued that they neither created the wet condition on the walkway nor had actual or constructive notice of it, and that any water that had accumulated on the walkway had resulted solely from intermittent rainfall.  In an order dated May 17, 2024, the Supreme Court, inter alia, granted those branches of the Van Sinderen/MacQuesten defendants' motion and LRC's cross-motion which were for summary judgment dismissing the complaint insofar as asserted against each of them.  The plaintiff appeals.

“In order to impose liability upon a defendant in a slip-and-fall case, there must be evidence tending to show the existence of a dangerous or defective condition” (San Antonio NY 340 Ridge Tenants Corp., 204 AD3d 713, 714).  “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 allegedly hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” (Steele NY Samaritan Found., Inc., 176 AD3d 998, 999;  see Harrington NY New York City Tr. Auth., 223 AD3d 789, 789).  “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” (Griffin NY PMV Realty, LLC, 181 AD3d 912, 913 [internal quotation marks omitted];  see Harrington NY New York City Tr. Auth., 223 AD3d at 789).  “A party ․ who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific reoccurance of that condition” (Pagan NY New York City Hous. Auth., 172 AD3d 888, 889 [internal quotation marks omitted] ).

Here, the Van Sinderen/MacQuesten defendants and LRC failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against each of them.  The evidence relied upon by the Van Sinderen/MacQuesten defendants in support of their motion and LRC in support of its cross-motion, which included a transcript of the plaintiff's deposition testimony, failed to eliminate triable issues of fact as to whether the Van Sinderen/MacQuesten defendants and LRC created the alleged dangerous condition through the use of a hose in the walkway near where the plaintiff fell (see San Antonio NY 340 Ridge Tenants Corp., 204 AD3d at 715;  cf.  Derosa NY Zaliv, LLC, 189 AD3d 1355, 1356).

The Van Sinderen/MacQuesten defendants and LRC also failed to establish, prima facie, that they lacked constructive notice of the alleged dangerous condition or a recurring condition (see Milano NY Staten Is. Univ. Hosp., 73 AD3d 1141, 1142).  The record reveals, among other things, that the Van Sinderen/MacQuesten defendants and LRC were aware that water accumulated in the pedestrian walkway under certain conditions, including when it rained, and that any “puddles and dampness” in that area were removed once workers arrived in the morning, with laborers assigned to inspect the walkway and use blowers to dry the walkway and address conditions that could pose a slipping hazard (see NY City Bldg Code [Administrative Code of City of NY, title 28, ch 7] § BC 3303.4.1.1).

Accordingly, the Supreme Court should have denied those branches of the Van Sinderen/MacQuesten defendants' motion and LRC's cross-motion which were for summary judgment dismissing the complaint insofar as asserted against each of them regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad NY New York Univ. Med. Ctr., 64 NY2d 851, 853).

CHAMBERS, J.P., DOWLING, WAN and MCCORMACK, JJ., concur.