| Granillo v Toys "R" Us, Inc. |
| 2010 NY Slip Op 03410 [72 AD3d 1024] |
| April 27, 2010 |
| Appellate Division, Second Department |
| Mayra Granillo, Respondent, v Toys "R" Us, Inc., et al.,Appellants. |
—[*1] Paul Carmona & Associates, PLLC, Brewster, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Westchester County (Lefkowitz, J.), entered November 19, 2009, whichdenied their motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On July 2, 2004, the plaintiff was shopping in a Toys "R" Us store in Yonkers owned andoperated by the defendants. As she walked toward the exit, she fell, allegedly sustaining injuries.Immediately after her fall, she observed melted or melting ice cream on the floor near where shefell, which condition allegedly caused her to slip and fall. The plaintiff commenced this action torecover damages for personal injuries. The defendants moved for summary judgment dismissingthe complaint. The Supreme Court denied the defendants' motion. We affirm.
" 'A defendant who moves for summary judgment in a slip-and-fall case has the initialburden of making a prima facie showing that it neither created the hazardous condition nor hadactual or constructive notice of its existence for a sufficient length of time to discover andremedy it' " (Aguirre v Paul, 54AD3d 302, 303 [2008], quoting Prusak v New York City Hous. Auth., 43 AD3d 1022, 1022[2007]; see Lewis v Metropolitan Transp. Auth., 64 NY2d 670, 671 [1984]). " 'Adefendant has constructive notice of a defect when it is visible and apparent, and has existed fora sufficient length of time before the accident that it could have been discovered and corrected' "(Williams v SNS Realty of Long Is.,Inc., 70 AD3d 1034, 1035 [2010], quoting Hayden v Waldbaum, Inc., 63 AD3d 679, 679 [2009]; seeGordon v American Museum of Natural History, 67 NY2d 836, 837-838 [1986]). "To meetits initial burden on the issue of lack of constructive notice, [a] defendant must offer someevidence as to when the area in question was last cleaned or inspected relative to the time whenthe plaintiff fell" (Birnbaum v NewYork Racing Assn., Inc., 57 AD3d 598, 598-599 [2008]; see Williams v SNS Realtyof Long Is., Inc., 70 AD3d at 1035; Pryzywalny v New York City Tr. Auth., 69 AD3d 598 [2010]; Musachio v Smithtown Cent. SchoolDist., 68 AD3d 949, 949-950 [2009]; Sherry v Wal-Mart Stores E., L.P., 67 AD3d 992, 993-994 [2009];Holub v Pathmark Stores, Inc., 66AD3d 741, 742 [2009]; Braudy vBest Buy Co., Inc., 63 AD3d 1092, 1092 [2009]). Here, the defendants failed to satisfytheir initial burden. Accordingly, the [*2]Supreme Court properlydenied the defendants' motion for summary judgment dismissing the complaint regardless of thesufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851 [1985]). Mastro, J.P., Dickerson, Belen and Chambers, JJ., concur.