Steele v. Samaritan Found., Inc.

176 A.D.3d 998

110 N.Y.S.3d 448

Nikaiya STEELE, Respondent,

v.SAMARITAN FOUNDATION, INC., et al., Appellants.

2018–13209

Index No. 2214/16

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

Argued - May 30, 2019

October 16, 2019

Rutherford & Christie, LLP, New York, N.Y. (David S. Rutherford and Gabriella Ali–Marino of counsel), for appellants.

Sobo & Sobo, LLP, Middletown, N.Y. (John A. Del Duco III of counsel), for respondent.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Orange County (Maria S. Vazquez–Doles, J.), dated October 25, 2018. The order denied the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff alleges that she was injured when she slipped and fell on liquid in the kitchen of a residential treatment facility owned and operated by the defendants. She commenced this action to recover damages for personal injuries, alleging negligent maintenance of the facility. The defendants moved for summary judgment dismissing the complaint on the grounds that they lacked notice of the allegedly dangerous condition and, in effect, that the plaintiff was unable to identify the cause of her fall without resorting to speculation. The Supreme Court denied the motion. The defendants appeal.

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 allegedly hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Warren v. Walmart Stores, Inc. , 105 A.D.3d 732, 733, 963 N.Y.S.2d 150 ; Mahoney v. AMC Entertainment, Inc. , 103 A.D.3d 855, 959 N.Y.S.2d 752 ; see also Gordon v. American Museum of Natural History , 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 ). Only after the movant has satisfied this threshold burden will the court examine the sufficiency of the plaintiff's opposition (see Birnbaum v. New York Racing Assn., Inc. , 57 A.D.3d 598, 869 N.Y.S.2d 222 ; Britto v. Great Atl. & Pac. Tea Co., Inc. , 21 A.D.3d 436, 437, 799 N.Y.S.2d 828 ).

To meet its initial burden on the issue of lack of constructive notice, the moving defendant must offer evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell (see Rodriguez v. New York City Hous. Auth. , 169 A.D.3d 947, 948, 94 N.Y.S.3d 318 ; Quinones v. Starret City, Inc. , 163 A.D.3d 1020, 1021, 81 N.Y.S.3d 184 ; Hanney v. White Plains Galleria, LP , 157 A.D.3d 660, 661, 68 N.Y.S.3d 522 ; Birnbaum v. New York Racing Assn., Inc. , 57 A.D.3d at 598–599, 869 N.Y.S.2d 222 ). Here, the defendants failed to satisfy this initial burden. The deposition testimony of the facility's assistant director of operations, who lacked personal knowledge of the relevant facts, merely referred to the general cleaning practices at the facility. The defendants failed to present any evidence regarding specific cleaning or inspection of the area in question relative to the time when the subject accident occurred (see Rodriguez v. New York City Hous. Auth. , 169 A.D.3d at 948, 94 N.Y.S.3d 318 ; Quinones v. Starret City, Inc. , 163 A.D.3d at 1022, 81 N.Y.S.3d 184 ; Hanney v. White Plains Galleria, LP , 157 A.D.3d at 661–662, 68 N.Y.S.3d 522 ; Birnbaum v. New York Racing Assn., Inc. , 57 A.D.3d at 598–599, 869 N.Y.S.2d 222 ). Thus, the defendants were not entitled to summary judgment dismissing the complaint on the ground that they established lack of notice of the alleged hazardous condition.

A defendant in a slip-and-fall case may also establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall without engaging in speculation (see Rodriguez v. New York City Hous. Auth. , 169 A.D.3d at 948–949, 94 N.Y.S.3d 318 ; Andersen v. El Triunfo Laundromat Corp. , 151 A.D.3d 921, 54 N.Y.S.3d 166 ; Belton v. Gemstone HQ Realty Assoc., LLC , 145 A.D.3d 840, 841, 43 N.Y.S.3d 499 ; Hahn v. Go Go Bus Tours, Inc. , 144 A.D.3d 748, 749, 40 N.Y.S.3d 549 ; Korn v. Parkside Harbors Apts., LLC , 134 A.D.3d 769, 22 N.Y.S.3d 99 ). The defendants failed to establish their prima facie entitlement to judgment as a matter of law based upon this ground. The...