Diaz v. Laguardia Express, LLC

186 A.D.3d 1616

129 N.Y.S.3d 821 (Mem)

Olivia C. DIAZ, respondent,

v.LAGUARDIA EXPRESS, LLC, et al., appellants.

2019–05634

Index No. 705559/17

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

Argued—March 31, 2020

September 30, 2020

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for appellants.

Mitchell Dranow, Sea Cliff, NY, for respondent.

ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, RUTH C. BALKIN, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Denis J. Butler, J.), dated April 11, 2019. The order denied the motion of the defendants LaGuardia Express, LLC, and Field Hotel Associates, L.P., for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the appeal by the defendants Hampton Inn and Hampton by Hilton is dismissed, as those defendants are not aggrieved by the order (see CPLR 5511 ); and it is further,

ORDERED that the order is reversed on the appeal by the defendants LaGuardia Express, LLC, and Field Hotel Associates, L.P., on the law, and those defendants' motion for summary judgment dismissing the complaint insofar as asserted against them is granted; and it is further,

ORDERED that one bill of costs is awarded to the defendants LaGuardia Express, LLC, and Field Hotel Associates, L.P.

The plaintiff commenced this action against the defendants to recover damages for personal injuries that she allegedly suffered on February 28, 2016, between 12:00 and 12:30 p.m., when she slipped and fell on soapy water in the service room of the defendants' hotel in Queens. The service room, which was kept locked and not accessible by the guests, led to an elevator which was used by those who worked at the hotel. At the time of the accident, the plaintiff was employed by an independent contractor, which provided cleaning services at the defendants' hotel. In the order appealed from, the Supreme Court denied the motion of the defendants LaGuardia Express, LLC, and Field Hotel Associates, L.P. (hereinafter together the moving defendants), for summary judgment dismissing the complaint insofar as asserted against them, determining that the moving defendants failed to establish, prima facie, that they did not have notice of the alleged hazardous condition.

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of establishing, prima facie, that it neither created the alleged hazardous condition nor had actual or constructive notice of its existence (see Colon v. New York Mercantile Exch., Inc., 172 A.D.3d 811, 812, 98 N.Y.S.3d 436 ; Hagan v. City of New York, 166 A.D.3d 590, 591, 87 N.Y.S.3d 325 ; Adamson v. Radford Mgt. Assoc., LLC, 151 A.D.3d 913, 914, 58 N.Y.S.3d 100 ). To provide constructive notice, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" ( Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 ).

Here, as ...