Margaret G. Klein, New York, N.Y. (Mischel & Horn P.C. [Scott T. Horn and Naomi M. Taub ], of counsel), for appellant-respondent.
Akin Law Group PLLC, New York, N.Y. (Zafer A. Akin of counsel), for respondent-appellant.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and SANDRA L. SGROI, JJ.
Opinion
In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated March 26, 2014, as denied its motion for summary judgment dismissing the complaint, and the plaintiff cross-appeals, as limited by her brief, from so much of the same order as denied her cross motion for summary judgment on the issue of liability.
ORDERED that the order is reversed insofar as appealed from, on the law, and the defendant's motion for summary judgment dismissing the complaint is granted; and it is further,
ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
The plaintiff allegedly was injured when she slipped and fell on water in a vestibule
area in an apartment building in Brooklyn. At the time of the accident, the building allegedly was owned or maintained by the defendant. The plaintiff commenced this action to recover damages for personal injuries, and the defendant moved for summary judgment dismissing the complaint. The plaintiff opposed the defendant's motion and cross-moved for summary judgment on the issue of liability. The Supreme Court denied both the motion and the cross motion.
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 a dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Payen v. Western Beef Supermarket, 106 A.D.3d 710, 964 N.Y.S.2d 583 ; Knack v. Red Lobster 286, N & D Rests., Inc., 98 A.D.3d 473, 949 N.Y.S.2d 205 ; Halpern v. Costco Warehouse/Costco Wholesale, 95 A.D.3d 828, 828, 943 N.Y.S.2d 567 ). While a “defendant [is] not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain” (Negron v. St. Patrick's Nursing Home, 248 A.D.2d 687, 687, 671 N.Y.S.2d 275 ; see Paduano v. 686 Forest Ave., LLC, 119 A.D.3d 845, 989 N.Y.S.2d 379 ; Sarandrea v. St. Charles Sch., 118 A.D.3d 690, 986 N.Y.S.2d 351 ), a defendant may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable
time to undertake remedial action (see Mentasi v. Eckerd Drugs, 61 A.D.3d 650, 651, 877 N.Y.S.2d 149 ; Ruic v. Roman Catholic Diocese of Rockville Ctr., 51 A.D.3d 1000, 1001, 858 N.Y.S.2d 761 ; Williams v. JP Morgan Chase & Co., 39 A.D.3d 852, 834 N.Y.S.2d 310 ).
In support of its motion for summary judgment, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create any dangerous condition in the vestibule area, or have actual or constructive notice of any such condition prior to the plaintiff's accident (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 ; Fajardo v. Schapiro, 120 A.D.3d 468, 990 N.Y.S.2d 269 ; Schubert–Fanning v. Stop & Shop Supermarket Co., LLC, 118 A.D.3d 862, 863–864, 988 N.Y.S.2d 245 ; Sarandrea v. St. Charles Sch., 118 A.D.3d at 691, 986 N.Y.S.2d 351 ; Sinclair v. Chau, 117 A.D.3d 713, 714, 985 N.Y.S.2d 267 ). In opposition to the defendant's prima facie showing, the plaintiff relied almost exclusively on the affidavit of an expert, which failed to raise a triable issue of fact. To the extent that the expert opined that the vestibule floor was inherently slippery due to its smoothness, that is not an actionable defect (see Murphy v. Conner, 84 N.Y.2d 969, 622 N.Y.S.2d 494, 646 N.E.2d 796 ; German v. Campbell Inn, 37 A.D.3d 405, 829 N.Y.S.2d 631 ; see e.g. Palermo v. Roman Catholic Diocese of Brooklyn, N.Y., 20 A.D.3d 516, 799 N.Y.S.2d 248 ). Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.
In support of her cross motion for summary judgment on the issue of liability, the plaintiff failed to make a prima facie showing that the defendant created any dangerous condition in the vestibule area or had notice of such a condition. Accordingly, the Supreme Court properly denied the plaintiff's cross motion.