| Smith v Costco Wholesale Corp. |
| 2008 NY Slip Op 03682 [50 AD3d 499] |
| April 24, 2008 |
| Appellate Division, First Department |
| Marlene Smith, Respondent, v Costco WholesaleCorporation, Appellant. |
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Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered July 27, 2007,which denied defendant's motion for summary judgment dismissing the complaint, unanimouslyreversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerkis directed to enter judgment accordingly.
It is a well-established principle of law that a landowner is under a duty to maintain itsproperty in a reasonably safe condition under the existing circumstances, which include thelikelihood of injury to a third party, the potential that such an injury would be of a serious nature,and the burden of avoiding the risk (Basso v Miller, 40 NY2d 233, 241 [1976]; Zuk v Great Atl. & Pac. Tea Co., Inc.,21 AD3d 275 [2005]). In order to subject a property owner to liability for a hazardouscondition on its premises, a plaintiff must demonstrate that the owner created, or had actual orconstructive notice of the dangerous condition which precipitated the injury (Piacquadio vRecine Realty Corp., 84 NY2d 967, 969 [1994]; Alexander v New York City Tr., 34 AD3d 312, 313 [2006]). In thecase of actual or constructive notice, plaintiff must also show that the owner had a sufficientopportunity, with the exercise of reasonable care, to remedy the situation (Aquino v Kuczinski, Vila & Assoc.,P.C., 39 AD3d 216, 219 [2007]; Morales v Shelter Express Corp., 26 AD3d 420 [2006]).
A defendant who moves for summary judgment in a slip-and-fall action has the initial burdenof making a prima facie demonstration that it neither created the hazardous condition, nor hadactual or constructive notice of its existence (Manning v Americold Logistics, LLC, 33 AD3d 427 [2006]; Mitchell v City of New York, 29 AD3d372, 374 [2006]). Once a defendant establishes prima facie entitlement to such relief as amatter of law, the burden shifts to plaintiff to raise a triable issue of fact as to the creation of thedefect or notice thereof (Kesselman vLever House Rest., 29 AD3d 302, 303-304 [2006]; Bosman v Reckson FS Ltd. Partnership, 15 AD3d 517 [2005]).
In the matter before us, the deposition testimony of defendant's senior administrativemanager and the documentary evidence submitted by defendant demonstrate that the bathroomswere cleaned and monitored regularly by defendant's personnel, that no problems were notedduring the inspection prior to plaintiff's fall, and that inspections conducted after the incidentindicated no foreign substance or liquid on the bathroom floor, no bucket and mop were presentin the bathroom, and no plumbing problems existed. As a result, we find that defendant [*2]shouldered its burden of making a prima facie showing that itneither created the hazardous condition, nor had notice of it (see Edwards v Port Auth. of N.Y. & N.J., 48 AD3d 405 [2008]; Resto v 798 Realty, LLC, 28 AD3d388 [2006]).
In contrast, plaintiff's deposition testimony provides nothing more than mere speculation asto the cause of the accident and offers nothing to indicate that defendant created or had notice ofthe hazard. Indeed, plaintiff testified that she "assume[d]" and "think[s]" she fell because thefloor was wet, had no idea how long the water was on the floor or how it got there, and did notnotice any debris on the floor. Accordingly, plaintiff has failed to establish that an issue of factexists as to defendant's liability (seeRudner v New York Presbyt. Hosp., 42 AD3d 357, 358 [2007]; Kane v Estia GreekRest., 4 AD3d 189, 190-191 [2004]). To the extent that plaintiff's correction sheet to herdeposition testimony, and her affidavit in opposition to defendant's motion, now indicate that shedid, in fact, see water and debris on the bathroom floor, as well as a mop, bucket and caution signin the corner of the bathroom, we can only consider such statements to have been tailored toavoid the consequences of her earlier testimony and are, therefore, insufficient to raise a triableissue of fact (see Burkoski v StructureTone, Inc., 40 AD3d 378, 383 [2007]; Perez v Bronx Park S. Assoc., 285 AD2d402, 404 [2001], lv denied 97 NY2d 610 [2002]). We further note that plaintiff'scorrection sheet lacked a statement of reasons for making the corrections to her depositiontestimony and the reason proffered in plaintiff's affidavit in opposition, that she was not askedquestions which would have elicited the information in the corrected responses, is unpersuasive(see Rodriguez v Jones, 227 AD2d 220 [1996]). Concur—Lippman, P.J., Saxe,Gonzalez and Nardelli, JJ.