GONZALEZ v. JENEL MANAGEMENT CORP

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Supreme Court, Appellate Division, Second Department, New York.

Magaly GONZALEZ, et al., respondents, v. JENEL MANAGEMENT CORP., et al., appellants.

Decided: October 25, 2004

NANCY E. SMITH, J.P., PETER B. SKELOS, STEVEN W. FISHER, and ROBERT A. LIFSON, JJ. Goldstein & Avrutine, Syosset, N.Y., for appellants. Kramer & DeVries, LLP, New York, N.Y. (Keith DeVries of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated October 17, 2001, which denied their motion for summary judgment dismissing the complaint.   Justices Skelos, Fisher, and Lifson have been substituted for the late Justice O'Brien and former Justices McGinity and Townes (see 22 NYCRR 670.1[c] ).

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff Magaly Gonzalez alleged that she was injured when she slipped and fell on a wet stair located just inside the defendants' premises.   She further alleged that the stair had become wet as the result of people tracking water into the premises during an ongoing rainfall.

 A plaintiff in a slip-and-fall case must demonstrate that the defendant created, or had actual or constructive notice of the defective condition which allegedly caused him or her to fall (see Price v. EQK Green Acres, 275 A.D.2d 737, 713 N.Y.S.2d 488;  Kraemer v. K-Mart Corp., 226 A.D.2d 590, 641 N.Y.S.2d 130).   To constitute constructive notice, a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit a defendant 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).   Moreover, proof of “a ‘general awareness' that a dangerous condition may be present” is not sufficient to establish notice of the particular condition which caused a plaintiff to fall (Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 646 N.E.2d 795;  see Welles v. New York City Hous. Auth., 284 A.D.2d 327, 725 N.Y.S.2d 385).   Here, the defendants met their initial burden of establishing that they neither created nor were aware of the alleged dangerous condition.

 In opposition, the plaintiffs failed to provide evidence as to how long the puddle had been on the step, thereby making it pure speculation that the defendants had sufficient time to remedy the situation (see McDuffie v. Fleet Fin. Group, 269 A.D.2d 575, 703 N.Y.S.2d 510).   Further, even assuming that the defendants were aware that water on the steps was a recurrent condition in rainy weather, proof that the defendants were aware of this general condition is not sufficient to establish constructive notice of the particular condition which caused the injured plaintiff to fall (see Kershner v. Pathmark Stores, Inc., 280 A.D.2d 583, 584, 720 N.Y.S.2d 552;  McDuffie v. Fleet Fin. Group, supra at 575, 703 N.Y.S.2d 510).

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