| Greenstein v R & R of G.C., Inc. |
| 2008 NY Slip Op 02964 [50 AD3d 637] |
| April 1, 2008 |
| Appellate Division, Second Department |
| Pamela Greenstein et al., Appellants, v R & R of G.C., Inc.,Doing Business as Wendy's, Respondent. |
—[*1] Nashak, Frank, Goerlich, Baum & Pape, Lake Success, N.Y. (Michael G. Nashak ofcounsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Nassau County (Robbins, J.), dated December 18, 2006, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
The plaintiff allegedly was injured when she slipped and fell at approximately 5:00 p.m. nearthe condiment section of the defendant's restaurant on a greasy spot that appeared to have beencaused by mopping the area with a greasy mop. In order to prevail on its motion for summaryjudgment dismissing the complaint, the defendant was required to establish its entitlement tojudgment as a matter of law by demonstrating that it neither created nor had actual orconstructive notice of the condition that allegedly caused the plaintiff to fall (see Panetta v Phoenix Beverages, Inc.,29 AD3d 659, 660 [2006]; Scheer vPathmark Stores, 6 AD3d 520, 520-521 [2004]; Seneglia v FPL Foods, 273AD2d 221 [2000]). The deposition testimony of the defendant's manager, upon which thedefendant relied, was insufficient to meet this burden. The manager testified that the area inwhich the plaintiff allegedly fell was regularly mopped after 2:30 p.m. and again at 10:00 p.m.,which was closing time. Although the defendant's procedures required that a blue mop, whichwas used to clean the kitchen and tended to become greasy, was not to be used to clean therestaurant, the manager was not present on the day of the alleged accident and thus had nopersonal knowledge as to whether the correct mop was used that day. As a result, the evidencesubmitted by the defendant [*2]in support of the motion did notexclude the possibility that the greasy spot where the plaintiff allegedly fell had been created bythe use of the wrong mop shortly before the alleged accident. The Supreme Court erred,therefore, in granting the defendant's motion for summary judgment because it failed to establishits prima facie entitlement to judgment as a matter of law (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d557, 562 [1980]; Garafolo v A.M.F. White Plains Bowl, 277 AD2d 283 [2000]). "Failureto make such showing requires denial of the motion, regardless of the sufficiency of the opposingpapers" (Weingrad v New York Univ. Med. Ctr., 64 NY2d at 853). Spolzino, J.P., Ritter,Santucci and Carni, JJ., concur.