Ahmetaj v. Mountainview Condo.

171 A.D.3d 683

98 N.Y.S.3d 104

Rustem AHMETAJ, et al., Appellants,

v.MOUNTAINVIEW CONDOMINIUM, Defendant,Mountainview Condominium Association, Respondent.

2018–00239

Index No. 31004/15

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

Submitted—December 03, 2018

April 3, 2019

Bergman, Bergman, Fields & Lamonsoff, LLP, Hicksville, N.Y. (Michael E. Bergman, Seth I. Fields, and Julie T. Mark of counsel), for appellants.

Marshall Dennehey Warner Coleman & Goggin, P.C., Rye Brook, N.Y. (Jennifer M. Meyers of counsel), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Rockland County (Rolf Thorsen, J.), dated November 28, 2017. The order granted the motion of the defendant Mountainview Condominium Association for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Mountainview Condominium Association for summary judgment dismissing the complaint insofar as asserted against it is denied.

On February 10, 2015, between 6:30 and 7:00 p.m., the plaintiff Rustem Ahmetaj (hereinafter the plaintiff) allegedly slipped and fell on ice on a cement walkway (hereinafter the breezeway) of a condominium complex. The plaintiff, and his wife suing derivatively, commenced this action against, among others, the defendant Mountainview Condominium Association (hereinafter the defendant), to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint insofar as asserted against it, contending that it did not create the alleged hazardous condition or have actual or constructive notice of its existence. The Supreme Court granted the motion. The plaintiffs appeal.

"A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence" ( Cuillo v. Fairfield Prop. Servs., L.P. , 112 A.D.3d 777, 778, 977 N.Y.S.2d 353 ; see Castillo v. Silvercrest , 134 A.D.3d 977, 977, 24 N.Y.S.3d 86 ; Haberman v. Meyer , 120 A.D.3d 1301, 1301, 993 N.Y.S.2d 80 ). "Thus, 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 the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it" ( Castillo v. Silvercrest , 134 A.D.3d at 977, 24 N.Y.S.3d 86 ; see Ross v. Half Hollow Hills Cent. Sch. Dist. , 153 A.D.3d 745, 746, 60 N.Y.S.3d 323 ). "A defendant has constructive notice of a dangerous condition when the condition has been visible and apparent long enough for the defendant to have discovered and remedied it" ( Garcia–Monsalve v. Wellington Leasing, L.P. , 123 A.D.3d 1085, 1086, 1 N.Y.S.3d 228 ; see Gordon v. American Museum of Natural History , 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774 ). "To meet its initial burden on the issue of lack 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" ( Feola v. City of New York , 102 A.D.3d 827, 828, 958 N.Y.S.2d 208 [internal quotation marks omitted]; see Birnbaum v. New York Racing Assn., Inc. , 57 A.D.3d 598, 598–599, 869 N.Y.S.2d 222 ).

Here, the defendant failed to demonstrate, prima facie, that it did not have constructive notice of the alleged ice condition that caused the plaintiff to fall. The deposition testimony of the defendant's site manager merely referred to her general practice of traversing the breezeway where the accident allegedly occurred, one to two times per week, but provided no evidence regarding any specific inspection of the area prior to the plaintiff's fall (see Baez v. Willow...