Morlan v. Atl. Westerly Co.

2023 NY Slip Op 01288

Alex Morlan, respondent, v. Atlantic Westerly Co., et al., defendants

Westerly Health Foods, Inc., etc., appellant (and a third-party action).

No. 2020-07634, Index No. 612346/18

Supreme Court of New York, Second Department

March 15, 2023

Vigorito, Barker, Patterson, Nichols & Porter, LLP Valhalla, NY (Bhalinder L. Rikhye of counsel), for appellant.

Levidow, Levidow & Oberman, P.C. (Diamond & Diamond LLC, Brooklyn, NY [Stuart Diamond], of counsel), for respondent.

ANGELA G. IANNACCI, J.P., ROBERT J. MILLER, LINDA CHRISTOPHER, LILLIAN WAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Westerly Health Foods, Inc., appeals from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered September 3, 2020. The order, insofar as appealed from, denied that branch of that defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In January 2018, the plaintiff allegedly was injured when he slipped and fell on a patch of ice while walking on the sidewalk abutting 911 8th Avenue in Manhattan. The portion of the sidewalk where the plaintiff allegedly slipped abutted the Westerly Natural Food Market, a grocery store operated by the defendant Westerly Health Foods, Inc. (hereinafter Westerly). That portion of the sidewalk was partially covered by a sidewalk bridge, also referred to as scaffolding, which was held up by long metal poles, under which were blocks of wood.

As a result of the accident, the plaintiff commenced this action against, among others, Westerly to recover damages for personal injuries, alleging a cause of action sounding in negligence. The plaintiff alleged that Westerly was negligent in, among other things, failing to properly maintain the area where the accident occurred.

Westerly moved for summary judgment dismissing the complaint and all cross- claims insofar as asserted against it. By order entered September 3, 2020, the Supreme Court, inter alia, denied Westerly's motion. Westerly appeals from so much of the order as denied that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it.

A property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition (see Kellman v 45 Tiemann Assoc., 87 N.Y.2d 871, 872; Basso v Miller, 40 N.Y.2d 233, 241). A "defendant property owner, or a party in possession or control of real property, who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence" (San Antonio v 340 Ridge Tenants Corp., 204 A.D.3d 713, 715 [internal quotation marks omitted]; see Dougherty v 359 Lewis Ave. Assoc., LLC, 191 A.D.3d 763, 764).

A defendant is deemed to have constructive notice of a dangerous condition on its property when the condition is visible and apparent, and existed for a sufficient length of time prior to the accident to permit the defendant's employees to discover the condition and remedy it (see Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837; Hegeman v City of Newburgh, 208 A.D.3d 461, 462). To establish the 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 of the accident (see Hegeman v City of Newburgh, 208 A.D.3d at 462; Birnbaum v New York Racing Assn., Inc., 57 A.D.3d 598, 598-599). "Reference to general cleaning practices is insufficient to establish a lack of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area in question" (Rong Wen Wu v Arniotes, 149 A.D.3d 786, 787; see Ahmetaj v Mountainview Condominium, 171 A.D.3d 683, 684; cf. Armijos v Vrettos Realty Corp., 106 A.D.3d 847, 847).

Here in support of its motion, Westerly submitted, among other things, a transcript of the deposition testimony of a shift manager for Westerly who was on duty on the date of the accident. The shift manager testified that, generally,...