| Babb v Marshalls of MA, Inc. |
| 2010 NY Slip Op 08687 [78 AD3d 976] |
| November 23, 2010 |
| Appellate Division, Second Department |
| Ingrid Babb, Appellant, v Marshalls of MA, Inc.,Respondents. |
—[*1] McAndrew, Conboy & Prisco, LLP, Woodbury, N.Y. (Mary C. Azzaretto of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Ruchelsman, J.), entered July 2, 2009, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
In a slip-and-fall accident, a defendant moving for summary judgment has the initial burdenof making a prima facie showing that it neither created the allegedly hazardous condition nor hadactual or constructive notice of its existence for a sufficient length of time to discover andremedy it (see Crapanzano v BalkonRealty Co., 68 AD3d 1042, 1042-1043 [2009]; Perlongo v Park City 3 & 4 Apts., Inc., 31 AD3d 409, 410 [2006];see also Murphy v Lawrence TowersApts., LLC, 15 AD3d 371 [2005]; Ford v Citibank, N.A., 11 AD3d 508 [2004]). To meet its initialburden on the issue of lack of constructive notice, the defendant must offer some evidence as towhen the area in question was last cleaned or inspected relative to the time when the plaintiff fell(see Braudy v Best Buy Co., Inc., 63AD3d 1092 [2009]; Birnbaum vNew York Racing Assn., Inc., 57 AD3d 598, 598-599 [2008]; see also Porco v Marshalls Dept.Stores, 30 AD3d 284 [2006]). Here, the plaintiff testified at her deposition that, on thedate of the subject accident, it had been raining intermittently until approximately 30-40 minutesbefore she arrived at the defendants' store, at which point the rain stopped. The defendants,however, failed to offer any evidence as to when, if at all, they cleaned or mopped the floor onthat date at the location where the plaintiff alleged she fell due to an accumulation of rainwater.
Accordingly, the Supreme Court should have denied the defendants' motion for summaryjudgment dismissing the complaint regardless of the sufficiency of the plaintiff's oppositionpapers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In lightof the foregoing, we need not reach the plaintiff's remaining contentions. Prudenti, P.J., Covello,Florio and Belen, JJ., concur.