MELIA v. King–Seng Sem, defendant-respondent, et al., defendant. (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Greentree Condominium II at Howard Beach appeals from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), entered June 11, 2024.  The order denied that defendant's motion for summary judgment dismissing the amended complaint and all cross-claims insofar as asserted against it and granted the motion of the defendant King–Seng Sem for summary judgment dismissing the amended complaint and all cross-claims insofar as asserted against him.

ORDERED that the appeal from so much of the order as granted those branches of the motion the defendant King–Seng Sem which were for summary judgment dismissing the amended complaint insofar as asserted against him and the cross-claim of the defendant Jane Parmel insofar as asserted against him is dismissed, as the defendant Greentree Condominium II at Howard Beach is not aggrieved by that portion of the order (see CPLR 5511;  Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132);  and it is further,

ORDERED that order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant King–Seng Sem which was for summary judgment dismissing the cross-claims of the defendant Greentree Condominium II at Howard Beach insofar as asserted against him, and substituting therefor a provision denying that branch of the motion;  as so modified, the order is affirmed insofar as reviewed;  and it is further,

ORDERED that the one bill of costs is awarded to the plaintiff payable by the defendant Greentree Condominium II at Howard Beach and one bill of costs is awarded to the defendant Greentree Condominium II at Howard Beach payable by the defendant King–Seng Sem.

On January 3, 2018, the plaintiff allegedly sustained injuries when she slipped and fell on an icy grate outside of a garage owned by the defendant Jane Parmel, which was located beneath a condominium unit owned by the defendant King–Seng Sem. The garage and the condominium unit were part of the defendant Greentree Condominium II at Howard Beach (hereinafter Greentree).  A pipe burst in the condominium unit, which leaked into and out of the garage unit below and resulted in an icy condition on the grate located outside of the garage unit.  The grate was located in an area that Greentree was responsible for maintaining.

The plaintiff commenced this action against Parmel, King–Seng Sem, and Greentree to recover damages for the plaintiff ‘s injuries.  King–Seng Sem interposed an answer to the amended complaint, asserting a cross-claim against Greentree and Parmel for contribution.  Greentree interposed an answer to the amended complaint, asserting cross-claims against King–Seng Sem and Parmel for negligence, contractual indemnification, contribution, common-law indemnification, and violation of an agreement to procure general liability insurance.  Parmel interposed an answer to the amended complaint, asserting a cross-claim against Greentree and King–Seng Sem for contribution.

King–Seng Sem moved, inter alia, for summary judgment dismissing all cross-claims insofar as asserted against him.  Greentree moved for summary judgment dismissing the amended complaint and all cross-claims insofar as asserted against it.  In an order entered June 11, 2024, the Supreme Court granted Sem's motion and denied Greentree's motion.  Greentree appeals.

An owner or possessor of real property has a duty to maintain its property in a reasonably safe condition (see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868;  Zavlanova v. Jetro Cash & Carry Enters., LLC, 240 A.D.3d 642, 643, 235 N.Y.S.3d 191).  “A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that [it] was not at fault in the happening of the subject accident” (Bristol v. Biser, 230 A.D.3d 1098, 1099–1100, 218 N.Y.S.3d 112 [internal quotation marks omitted];  see Zavlanova v. Jetro Cash & Carry Enters., LLC, 240 A.D.3d at 643, 235 N.Y.S.3d 191).  Contrary to the Supreme Court's determination, King–Seng Sem's submissions failed to eliminate triable issues of fact as to whether he was responsible for the pipe that burst or that he was free of fault in the happening of the accident.  Accordingly, the court should have denied that branch of his motion which was for summary judgment dismissing Greentree's cross-claims insofar as asserted against him without regard to the sufficiency of Greentree'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).

“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 v. Samaritan Found., Inc., 176 A.D.3d 998, 999, 110 N.Y.S.3d 448;  see Harrington v. New York City Tr. Auth., 223 A.D.3d 789, 789, 203 N.Y.S.3d 697).  “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 v. PMV Realty, LLC, 181 A.D.3d 912, 913, 119 N.Y.S.3d 876 [internal quotation marks omitted];  see Harrington v. New York City Tr. Auth., 223 A.D.3d at 789, 203 N.Y.S.3d 697).

“To meet its burden on the issue of lack of constructive notice, a defendant is required to offer evidence as to when the accident site was last cleaned or inspected before the accident” (Griffin v. PMV Realty, LLC, 181 A.D.3d at 913, 119 N.Y.S.3d 876;  see Harrington v. New York City Tr. Auth., 223 A.D.3d at 789, 203 N.Y.S.3d 697).  “ ‘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’ ” (Griffin v. PMV Realty, LLC, 181 A.D.3d at 913, 119 N.Y.S.3d 876, quoting Herman v. Lifeplex, LLC, 106 A.D.3d 1050, 1051, 966 N.Y.S.2d 473).  As the plaintiff contends, Greentree's submissions failed to eliminate triable issues of fact as to whether it had actual notice or constructive notice of the icy condition on the grate.

In a slip-and-fall case, a defendant may also establish its prima facie entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation (see Gardell v. Arden Ave. Homeowners Assn., 228 A.D.3d 834, 835, 214 N.Y.S.3d 64;  Padilla v. CVS Pharm., 175 A.D.3d 584, 585, 107 N.Y.S.3d 428).  Here, Greentree failed to establish its prima facie entitlement to judgment as a matter of law based upon this ground, as the plaintiff sufficiently identified the cause of her fall (see Gardell v. Arden Ave. Homeowners Assn., 228 A.D.3d at 836, 214 N.Y.S.3d 64;  Steele v. Samaritan Found., Inc., 176 A.D.3d at 1000, 110 N.Y.S.3d 448).

Accordingly, the Supreme Court properly denied Greentree's motion for summary judgment dismissing the amended complaint and all cross-claims insofar as asserted against it.

CHAMBERS, J.P., WOOTEN, WAN and HOM, JJ., concur.