Baez v. Willow Wood Assocs., LP

159 A.D.3d 785

69 N.Y.S.3d 814 (Mem)

Maria De Los Angeles BAEZ, et al., appellants,

v.WILLOW WOOD ASSOCIATES, LP, respondent.

2016–08292

Index No. 1635/14

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

Argued—December 15, 2017

March 14, 2018

Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Patrick Thompson of counsel), for appellants.

Martyn, Toher & Martyn, Mineola, N.Y. (Lisa Rossi and David Smith of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered June 16, 2016. The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The plaintiff Maria De Los Angeles Baez (hereinafter the injured plaintiff) allegedly was walking in the parking lot of a shopping center owned by the defendant when her foot came into contact with a hole in the parking lot, causing her to trip and fall. The injured plaintiff, and her husband suing derivatively, subsequently commenced this action. Following joinder of issue and the completion of discovery, the defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiffs appeal.

A defendant who moves for summary judgment in a trip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it (see Belton v. Gemstone HQ Realty Assoc., LLC, 145 A.D.3d 840, 841, 43 N.Y.S.3d 499 ; Mehta v. Stop & Shop Supermarket Co., LLC, 129 A.D.3d 1037, 12 N.Y.S.3d 269 ; Campbell v. New York City Tr. Auth., 109 A.D.3d 455, 456, 970 N.Y.S.2d 284 ; Levine v. Amverserve Assn., Inc., 92 A.D.3d 728, 729, 938 N.Y.S.2d 593 ). 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 ). To meet its burden on the issue of constructive notice, a defendant is required to offer evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall (see Sartori v. JP Morgan Chase Bank, N.A., 127 A.D.3d 1157, 7 N.Y.S.3d 548 ; Campbell v. New York City Tr. Auth., 109 A.D.3d at 456, 970 N.Y.S.2d 284 ; Levine v. Amverserve Assn., Inc., 92 A.D.3d at 729, 938 N.Y.S.2d 593 ; Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598–599, 869 N.Y.S.2d 222 ).

In support of its motion, the defendant failed to demonstrate that it lacked constructive notice of the hazardous condition which allegedly caused the injured plaintiff's fall. The defendant relied upon, inter alia, the deposition testimony and affidavit of the property manager,...