PETER B. SKELOS
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Mulholland, Minion, Duffy, Davey, McNiff & Beyrer, Williston Park, N.Y. (Christine M. Gibbons of counsel), for respondent We're Associates, Inc., also known as The We're Group.
Martyn, Toher, Martyn & Rossi, Mineola, N.Y. (Joseph S. Holotka of counsel), for respondents A.C.A. Industries, Inc., and Mayco Building Services, Inc.
PETER B. SKELOS, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, and SYLVIA O. HINDS–RADIX, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Parga, J.), dated February 15, 2013, which granted the separate motions of the defendant We're Associates, Inc., also known as The We're Group, and the defendants Mayco Building Services, Inc., and A.C.A. Industries, Inc., for summary judgment dismissing the complaint insofar as asserted against each of them.
ORDERED that the order is reversed, on the law, with one bill of costs payable by the defendants appearing separately and filing separate briefs, and the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them are denied.
In a slip-and-fall case, a defendant moving for summary judgment has the initial burden of making a prima facie showing that it did not create the condition on which the plaintiff slipped, and did not have actual or constructive notice of that condition ( see Rogers v. Bloomingdale's, Inc., 117 A.D.3d 933, 985 N.Y.S.2d 731; Armijos v. Vrettos Realty Corp., 106 A.D.3d 847, 965 N.Y.S.2d 536; Johnson v. Culinary Inst. of Am., 95 A.D.3d 1077, 944 N.Y.S.2d 307; Alston v. Starrett City Assoc., 72 A.D.3d 711, 898 N.Y.S.2d 859; Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 869 N.Y.S.2d 222). To constitute constructive notice, a dangerous condition must be visible and apparent and must exist for a sufficient length of time before the accident to permit the defendant to discover and remedy it ( see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774; Cassidy v. City of New York, 121 A.D.3d 735, 994 N.Y.S.2d 635; Rodriguez v. Shoprite Supermarkets, Inc., 119 A.D.3d 923, 989 N.Y.S.2d 855). To meet its burden on the issue of constructive notice, a 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 at 598–599, 869 N.Y.S.2d 222; see Rodriguez v. Shoprite Supermarkets, Inc., 119 A.D.3d at 923, 989 N.Y.S.2d 855; Johnson v. Culinary Inst. of Am., 95 A.D.3d at 1077, 944 N.Y.S.2d 307; Oliveri v. Vassar Bros. Hosp., 95 A.D.3d 973, 943 N.Y.S.2d 604; Mei Xiao Guo v. Quong Big Realty Corp., 81 A.D.3d 610, 611, 916 N.Y.S.2d 155). 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 ( see Rodriguez v. Shoprite Supermarkets, Inc., 119 A.D.3d at 923, 989 N.Y.S.2d 855; Rogers v. Bloomingdale's, Inc., 117 A.D.3d at 933, 985 N.Y.S.2d 731; Herman v. Lifeplex, LLC, 106 A.D.3d 1050, 966 N.Y.S.2d 473; Armijos v. Vrettos Realty Corp., 106 A.D.3d at 847, 965 N.Y.S.2d 536; Mahoney v. AMC Entertainment, Inc., 103 A.D.3d 855, 959 N.Y.S.2d 752; Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d at 599, 869 N.Y.S.2d 222).
Here, in support of their separate motions for summary judgment dismissing the complaint insofar as asserted against each of them, the defendants each failed to eliminate all triable issues of fact as to whether there was a foreign substance which caused the plaintiff to fall and, if so, whether they had constructive notice of the foreign substance in the stairwell where the plaintiff slipped and fell ( see Rodriguez v. Shoprite Supermarkets, Inc., 119 A.D.3d 923, 989 N.Y.S.2d 855; Mahoney v. AMC Entertainment, Inc., 103 A.D.3d at 855, 959 N.Y.S.2d 752). Further, the defendant We're Associates, Inc., also known as The We're Group, failed to eliminate all triable issues of fact as to whether it created the alleged condition on the stairwell ( see Friedman v. 1753 Realty Co., 117 A.D.3d 781, 986 N.Y.S.2d 175; Altinel v. John's Farms, 113 A.D.3d 709, 979 N.Y.S.2d 360). The defendants' failure to establish their prima facie entitlement to judgment as a matter of law required the denial of their motions, regardless of the sufficiency of the plaintiff's opposition papers ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).