Sesina v. Joy Lea Realty, LLC

REINALDO E. RIVERA

Reversed and remitted.

William Pager, Brooklyn, N.Y., for appellant. Charles J. Siegel, New York, N.Y. (Stephanie A. Johnson of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Martin, J.), dated December 7, 2012, which granted the defendants' motion for summary judgment dismissing the complaint and denied, as academic, her cross motion to disqualify the defendants' counsel.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the defendants' motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Supreme Court, Kings County, for a determination of the plaintiff's cross motion on the merits.

In a slip-and-fall case, a defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the allegedly hazardous condition or have actual or constructive notice of its existence for a sufficient length of time 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; Valentin v. Shoprite of Chester, 105 A.D.3d 1036, 1037, 965 N.Y.S.2d 510; Zerilli v. Western Beef Retail, Inc., 72 A.D.3d 681, 682, 898 N.Y.S.2d 614). With respect to the issue of constructive notice, to meet its initial burden, “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” ( Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598–599, 869 N.Y.S.2d 222; see Rogers v. Bloomingdale's, Inc., 117 A.D.3d 933, 933, 985 N.Y.S.2d 731; Herman v. Lifeplex, LLC, 106 A.D.3d 1050, 1051–1052, 966 N.Y.S.2d 473). “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” ( Herman v. Lifeplex, LLC, 106 A.D.3d at 1051, 966 N.Y.S.2d 473).

Here, on their motion for summary judgment dismissing the complaint, the defendants failed to eliminate triable issues of fact as to whether they had constructive notice of the wet floor, since they failed to proffer any evidence demonstrating when the subject area was last cleaned or inspected prior to the plaintiff's accident ( see Rogers v. Bloomingdale's, Inc., 117 A.D.3d at 934, 985 N.Y.S.2d 731; Babb v. Marshalls of MA, Inc., 78 A.D.3d 976, 977, 911 N.Y.S.2d 640). The deposition testimony of the defendant Laurey G. Mogil only provided information about the building's general cleaning procedures without addressing when the vestibule where the accident occurred had last been inspected or cleaned prior to the happening of the accident ( cf. Pomahac v. TrizecHahn 1065 Ave. of Ams., LLC, 65 A.D.3d 462, 884 N.Y.S.2d 402; Ford v. Citibank, N.A., 11 A.D.3d 508, 783 N.Y.S.2d 622). Since the defendants did not establish their prima facie 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).

Since the Supreme Court denied, as academic, the plaintiff's cross motion to disqualify the defendants' attorney, we remit the matter to the Supreme Court, Kings County, for a determination of plaintiff's cross motion on the merits ( see Gosine v. Sahabir, 91 A.D.3d 910, 911, 937 N.Y.S.2d 316; Hunter Sports Shooting Grounds, Inc. v. Foley, 73 A.D.3d 702, 705, 901 N.Y.S.2d 92).

Based on the foregoing, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint and considered the plaintiff's cross motion to disqualify the defendants' attorney on the merits.