WILLIAMS v. ISLAND TREES UNION FREE SCHOOL DISTRICT

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

Jeanette WILLIAMS, Appellant-Respondent, v. ISLAND TREES UNION FREE SCHOOL DISTRICT, Respondent, Dover Gourmet Corp., etc., Respondent-Appellant (and a third-Party action).

2017–01669

Decided: November 20, 2019

WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL ANGELA G. IANNACCI LINDA CHRISTOPHER, JJ. Edelman, Krasin & Jaye, PLLC, Westbury, N.Y. (Kara M. Rosen of counsel), for appellant-respondent. Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), for respondent—appellant. Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia and Glenn A. Kaminska of counsel), for respondent.

DECISION & ORDER

In a consolidated action to recover damages for personal injuries, the plaintiff appeals, and the defendant Dover Gourmet Corp. cross-appeals, from an order of the Supreme Court, Nassau County (George R. Peck, J.), entered February 3, 2017.  The order, insofar as appealed from, granted that branch of the motion of the defendant Island Trees Union Free School District which was for summary judgment dismissing the complaint asserted against it.

ORDERED that the cross appeal is dismissed as abandoned;  and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, and that branch of the motion of the defendant Island Trees Union Free School District which was for summary judgment dismissing the complaint asserted against it is denied;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendant Island Trees Union Free School District.

On June 18, 2013, the plaintiff, while attending a ceremony for her daughter at Island Trees High School, allegedly slipped and fell on clear liquid in the south cafeteria of the school, which was under the control of the defendant Island Trees Union Free School District (hereinafter the School District).  At the time of the accident, the plaintiff was walking in the cafeteria toward an “Aquafina” vending machine when both of her feet began to slip out from underneath her.  While on the ground after falling, the plaintiff noticed a puddle of water, approximately two inches wide and approximately three to four feet long, trailing from where she was located on the ground to the vending machine.

Thereafter, the plaintiff commenced an action against the School District to recover damages for personal injuries, alleging that the School District was negligent in, among other things, maintaining the premises.  That action was consolidated with an action the plaintiff commenced against the defendant Dover Gourmet Corp. (hereinafter Dover), the company that allegedly stocked the vending machine pursuant to a contract with the School District, to recover damages for personal injuries arising out of the same incident.  The School District subsequently moved, inter alia, for summary judgment dismissing the complaint asserted against it.  In an order entered February 3, 2017, the Supreme Court, inter alia, granted that branch of the School District's motion.  The plaintiff appeals.  While Dover filed a notice of cross appeal from the order, we must dismiss the cross appeal as abandoned since Dover does not seek reversal or modification of any portion of the order in its brief (see Kamins v United Healthcare Ins. Co. of N.Y., Inc., 171 A.D.3d 715, 715, 98 N.Y.S.3d 96;  Reid v. Soults, 114 A.D.3d 921, 922, 980 N.Y.S.2d 579;  see also Mazzurco v. Gordon, 173 A.D.3d 1001, 102 N.Y.S.3d 730).

A landowner “has a duty to maintain his or her premises in a reasonably safe condition” (Walsh v. Super Value, Inc., 76 A.D.3d 371, 375, 904 N.Y.S.2d 121;  see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868).  In a premises liability case, a defendant real property owner or a party in possession or control of real property that moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence (see Pilgrim v. Avenue D Realty Co., 173 A.D.3d 788, 99 N.Y.S.3d 688;  Gorokhovskiy v. NYU Hosps. Ctr., 150 A.D.3d 966, 54 N.Y.S.3d 646;  Kyte v. Mid–Hudson Wendico, 131 A.D.3d 452, 15 N.Y.S.3d 147;  Pampalone v. FBE Van Dam, LLC, 123 A.D.3d 988, 1 N.Y.S.3d 155).  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 (see Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Chang v. Marmon Enters., Inc., 172 A.D.3d 678, 99 N.Y.S.3d 397).  To meet its initial burden on the issue of lack of constructive notice, the defendant must offer evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell (see Radosta v. Schechter, 171 A.D.3d 1112, 1113, 97 N.Y.S.3d 664;  Lombardo v Kimco Cent. Islip Venture, LLC, 153 A.D.3d 1340, 60 N.Y.S.3d 497;  Birnbaum v New York Racing Assn., Inc., 57 A.D.3d 598, 598–599, 869 N.Y.S.2d 222).  “ ‘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’ ” (Giantomaso v. T. Weiss Realty Corp., 142 A.D.3d 950, 951, 37 N.Y.S.3d 313, quoting Herman v. Lifeplex, LLC, 106 A.D.3d 1050, 1051, 966 N.Y.S.2d 473;  see Ahmetaj v. Mountainview Condominium, 171 A.D.3d 683, 684, 98 N.Y.S.3d 104).

Here, the School District failed to demonstrate, prima facie, that it did not have constructive notice of the alleged water condition that caused the plaintiff to fall.  The deposition testimony of the School District's head custodian merely referred to the general cleaning and inspection practices of the custodial staff in relation to the south cafeteria of the school, but provided no evidence regarding any specific cleaning or inspection of the area in question relative to the time when the plaintiff's accident occurred (see Ahmetaj v. Mountainview Condominium, 171 A.D.3d at 684, 98 N.Y.S.3d 104;  Rodriguez v. New York City Hous. Auth., 169 A.D.3d 947, 948, 94 N.Y.S.3d 318;  Quinones v. Starret City, Inc., 163 A.D.3d 1020, 81 N.Y.S.3d 184).

Since the School District did not meet its prima facie burden of showing a lack of constructive notice of the condition that allegedly caused the plaintiff's accident, it is unnecessary to determine whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (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).

Accordingly, the Supreme Court should have denied that branch of the School District's motion which was for summary judgment dismissing the complaint asserted against it.

MASTRO, J.P., LEVENTHAL, IANNACCI and CHRISTOPHER, JJ., concur.

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