| Schiano v Mijul, Inc. |
| 2010 NY Slip Op 09119 [79 AD3d 726] |
| December 7, 2010 |
| Appellate Division, Second Department |
| Anthony Schiano, Respondent, v Mijul, Inc., et al.,Appellants. |
—[*1] Strazzullo Law Firm, P.C., Staten Island, N.Y. (Salvatore Strazzullo and Gail M. Blasie ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal (1), as limited by theirbrief, from so much of an order of the Supreme Court, Queens County (Kitzes, J.), entered June 5,2009, as denied that branch of their motion which was for summary judgment dismissing the complaint,and (2) from an order of the same court entered October 20, 2009, which denied those branches oftheir motion which were for leave to renew and reargue that branch of their prior motion which was forsummary judgment dismissing the complaint.
Ordered that the appeal from so much of the order entered October 20, 2009, as denied thatbranch of the motion which was for leave to reargue is dismissed, as no appeal lies from an orderdenying leave to reargue; and it is further,
Ordered that the order entered June 5, 2009, is affirmed insofar as appealed from; and it is further,
Ordered that the order entered October 20, 2009, is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
After eating breakfast at the defendants' restaurant, the plaintiff allegedly sustained personal injurieswhen he slipped and fell on a greasy substance while walking through the "drive-thru" area outside therestaurant. The complaint alleged that the defendants negligently maintained the premises. After issuewas joined, the defendants moved, inter alia, for summary judgment dismissing the complaint.
" 'A defendant who moves for summary judgment in a slip-and-fall case has the initial [*2]burden of making a prima facie showing that it neither created thehazardous condition nor had actual or constructive notice of its existence for a sufficient length of timeto discover and remedy it' " (Braudy v BestBuy Co., Inc., 63 AD3d 1092 [2009], quoting Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d 511, 512). "Tomeet its initial burden on the issue of . . . constructive notice, the defendant must offersome evidence as to when the area in question was last cleaned or inspected relative to the time whenthe plaintiff fell" (Birnbaum v New YorkRacing Assn., Inc., 57 AD3d 598, 598-599 [2008]). The defendants failed to satisfy theirinitial burden. The deposition testimony of the defendants' manager merely referred to the restaurant'sgeneral daily cleaning practices and provided no evidence regarding any particularized or specificinspection or cleaning procedure in the area of the plaintiff's fall on the date of the accident.Accordingly, it was proper for the Supreme Court to deny the defendants' motion for summaryjudgment regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Leave to renew is appropriate only when it is based on facts not known to the moving party at thetime of the original motion (see Carbajal vBobo Robo, Inc., 38 AD3d 820 [2007]). Here, the Supreme Court providently exercised itsdiscretion in denying that branch of the defendants' motion which was for leave to renew. In support ofthat branch of their motion, the defendants submitted an affidavit sworn to by Jose Galan, therestaurant's shift manager on the day of the occurrence. However, the defendants failed to demonstratethat they had undertaken diligent efforts to locate Galan prior to making the original motion(id.). Rivera, J.P., Leventhal, Hall and Roman, JJ., concur.