| Rodriguez v Hudson View Assoc., LLC |
| 2009 NY Slip Op 05530 [63 AD3d 1135] |
| June 30, 2009 |
| Appellate Division, Second Department |
| Andrea Rodriguez et al., Respondents, v Hudson ViewAssociates, LLC, et al., Appellants. |
—[*1] Tomkiel & Tomkiel, New York, N.Y. (Valerie J. Crown of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Westchester County (Liebowitz, J.), entered April 23, 2008, whichdenied their motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff Andrea Rodriguez (hereinafter the plaintiff) slipped and fell in the lobby of thebuilding where she was employed, allegedly as a result of water which had accumulated on thetile floor. The plaintiff testified at her deposition that "[a] lot" of rain was falling that morning,and that there were no mats or rugs on the lobby floor. After the plaintiff and her husband, suingderivatively, commenced this action, the defendants moved for summary judgment dismissingthe complaint on the ground that they neither created nor had actual or constructive notice of thehazardous condition.
"A defendant who moves for summary judgment in a slip-and-fall case has the initial burdenof making a prima facie case that it neither created the hazardous condition nor had actual orconstructive notice of its existence for a sufficient length of time to discover and remedy it"(Sloane v Costco Wholesale Corp., 49 AD3d 522, 523 [2008] [internal quotation marksomitted]). Here, the defendants failed to meet their burden. Although they submitted thedeposition testimony of their property manager and the plaintiff in support of their motion, theyoffered no evidence as to when the lobby floor was last inspected prior to the plaintiff's accident(see Britto v Great Atl. & Pac. Tea Co., Inc., 21 AD3d 436 [2005]; Mancini vQuality Mkts., 256 AD2d 1177 [1998]). Under these circumstances, it is not necessary toconsider the sufficiency of the plaintiffs' opposition papers (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]). Prudenti, P.J., Fisher, Miller and Lott, JJ., concur.