KONIECKO v. POLO LLC (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Polo, LLC, appeals from an order of the Supreme Court, Queens County (Laurentina S. McKetney Butler, J.), entered March 28, 2025.  The order denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured when he slipped and fell on water that was on the floor of a residential building owned by the defendant Polo, LLC (hereinafter Polo).  Thereafter, the plaintiff commenced this action against Polo, and another defendant, to recover damages for personal injuries.  Polo moved for summary judgment dismissing the complaint insofar as asserted against it, contending that it did not create the condition that caused the plaintiff to fall or have actual or constructive notice of its existence.  In an order entered March 28, 2025, the Supreme Court denied the motion.  Polo appeals.

In a slip-and-fall case, a defendant moving for summary judgment “has the burden of making a prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence” (Parietti v. Wal–Mart Stores, Inc., 29 N.Y.3d 1136, 1137, 61 N.Y.S.3d 523, 83 N.E.3d 853;  see Ames v. Kimso Apts., Inc., 230 A.D.3d 543, 544, 216 N.Y.S.3d 689).  A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a length of time sufficient 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, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Freeman v. New York City Hous. Auth., 240 A.D.3d 578, 578, 238 N.Y.S.3d 272).  “To meet its initial burden on the issue of lack of constructive notice, a 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” (Edwards v. Genting N.Y., LLC, 217 A.D.3d 749, 750, 191 N.Y.S.3d 149 [alteration and internal quotation marks omitted];  see Ames v. Kimso Apts., Inc., 230 A.D.3d at 544, 216 N.Y.S.3d 689).

Here, the evidence submitted by Polo in support of its motion failed to demonstrate, prima facie, that it lacked constructive notice of the allegedly dangerous condition that caused the plaintiff to fall (see Ortiz v. New York City Hous. Auth., 227 A.D.3d 732, 733, 210 N.Y.S.3d 286;  Morlan v. Atlantic Westerly Co., 214 A.D.3d 787, 789, 186 N.Y.S.3d 57).  The deposition testimony of Polo's owner and of its property manager merely provided information as to the building's general cleaning and inspection practices.  Polo did not proffer any evidence demonstrating when the specific area where the plaintiff fell was last cleaned or inspected before the accident (see Ames v. Kimso Apts., Inc., 230 A.D.3d at 544, 216 N.Y.S.3d 689;  Vinokurova v. Edith & Carl Marks Jewish Community House of Bensonhurst, Inc., 212 A.D.3d 751, 752, 183 N.Y.S.3d 124).  “Reference to general cleaning practices is insufficient to establish a lack of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area in question” (Rodriguez v. New York City Hous. Auth., 169 A.D.3d 947, 948, 94 N.Y.S.3d 318 [internal quotation marks omitted];  see Ortiz v. New York City Hous. Auth., 227 A.D.3d at 733, 210 N.Y.S.3d 286).

Since Polo failed to sustain its prima facie burden of establishing its entitlement to judgment as a matter of law, 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, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

Accordingly, the Supreme Court properly denied Polo's motion for summary judgment dismissing the complaint insofar as asserted against it.

BRATHWAITE NELSON, J.P., WAN, HOM and GOLDBERG VELAZQUEZ, JJ., concur.