GOLDBERG v. SAL JERRY BAKERY INC (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Aaron D. Maslow, J.), dated July 26, 2024.  The order denied the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when, on a rainy day, she slipped and fell on an allegedly wet condition inside the defendants' bakery, near an entrance.  After discovery took place, including depositions, the defendants moved for summary judgment dismissing the complaint.  In an order dated July 26, 2024, the Supreme Court denied the defendants' motion.  The defendants appeal.

“[A] property owner is not obligated to provide a constant remedy to the problem of water being tracked into a building in rainy weather” (Price v. BFP Tower C Co., LLC, 216 AD3d 681, 682 [internal quotation marks omitted];  see Murphy v. Lawrence Towers Apts., LLC, 15 AD3d 371).  While a defendant is “not required to cover all of its floors with mats, or to continuously mop up all moisture resulting from tracked-in precipitation” (Yarmak v. LSS Leasing Corp., 219 AD3d 1472, 1472), a defendant may be held liable for an injury proximately caused by a dangerous condition created by water tracked into a building if it either created the hazardous condition or had actual or constructive notice of the condition and a reasonable time to undertake remedial action (see Vinokurova v Edith & Carl Marks Jewish Community House of Bensonhurst, Inc., 212 AD3d 751, 752;  Mentasi v. Eckerd Drugs, 61 AD3d 650, 651).

“To meet its initial burden on the issue of lack 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” (Rivera v Roman Catholic Archdiocese of N.Y., 197 AD3d 744, 745 [internal quotation marks omitted];  see Vinokurova v Edith & Carl Marks Jewish Community House of Bensonhurst, Inc., 212 AD3d at 752;  Fortune v. Western Beef, Inc., 178 AD3d 671, 672).  “ ‘Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice’ ” (Butts v. SJF, LLC, 171 AD3d 688, 689, quoting Herman v. Lifeplex, LLC, 106 AD3d 1050, 1051).

Here, the evidence submitted by the defendants in support of their motion failed to demonstrate, prima facie, that they lacked constructive notice of the alleged dangerous condition that caused the plaintiff to fall.  The defendants provided information only as to the bakery's general cleaning and inspection practices, and did not proffer any evidence demonstrating when the subject area was last cleaned or inspected before the accident (see King v. Damiano Corp. of Canarsie, 242 AD3d 969, 971;  cf.  Radosta v. Schechter, 171 AD3d 1112, 1113–1114).

Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint, it is not necessary to consider the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

The defendants' remaining contentions are improperly raised for the first time on appeal.

Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.

CONNOLLY, J.P., WARHIT, VOUTSINAS and GOLIA, JJ., concur.