| Mitchell v Uniforms USA, Inc. |
| 2011 NY Slip Op 02097 [82 AD3d 1474] |
| March 24, 2011 |
| Appellate Division, Third Department |
| Joan Mitchell, Appellant, v Uniforms USA, Inc., et al.,Respondents. |
—[*1] Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Kingston (Eric M. Kurtz of counsel), forUniforms USA, Inc., respondent. Law Office of Theresa J. Puleo, Albany (Murry S. Brower of counsel), for UNICCO ServiceCompany, respondent.
Stein, J. Appeal from an order of the Supreme Court (Platkin, J.), entered September 28,2009 in Ulster County, which granted defendants' motions for summary judgment dismissing thecomplaint.
Plaintiff was injured at her workplace when she slipped and fell on an area of wet tile in thebuilding's lobby left uncovered by protective matting. She thereafter commenced this actionagainst the subcontractors who maintained floor mats in, or cleaned, the building. After joinderof issue and discovery, defendants separately moved for summary judgment, arguing that theyowed no duty to plaintiff and, in any event, lacked actual or constructive notice of the allegedlydangerous condition. Supreme Court granted defendants' motions on the latter basis and plaintiffappeals.
We affirm. Assuming without deciding that either defendant owed a duty to plaintiff, she still"cannot recover absent a showing that defendant[s] either created the claimed dangerouscondition, or had actual or constructive notice thereof, and an opportunity to remedy the defect"(Golonka v Saratoga Teen & Recreation of Saratoga Springs, 249 AD2d 854, 855 [1998];see [*2]Zibro v Saratoga Natl. Golf Club, Inc., 55 AD3d 998,999-1000 [2008]; Hilsman v SarwilAssoc., L.P., 13 AD3d 692, 694 [2004]). Plaintiff's accident arose in the midst of heavyrain outside, and defendants neither caused the wet floor nor had actual notice of it; indeed, theaccident occurred before the janitorial staff of defendant UNICCO Service Company arrived forthe day, and defendant Uniforms USA, Inc. had no personnel on site that day. As to the issue ofconstructive notice, there is no proof as to how long the water was on the floor and neitherdefendant had previously received complaints of water in that area. Plaintiff submitted nothing tocontrovert the above evidence. Contrary to her contention, a generalized awareness that watercould be tracked in during a storm did not constitute constructive notice of the specific conditionleading to her fall (see Solazzo v NewYork City Tr. Auth., 6 NY3d 734, 735 [2005]; Rogers v Rockefeller Group Intl., Inc., 38 AD3d 747, 750 [2007];Hilsman v Sarwil Assoc., L.P., 13 AD3d at 694 n). Accordingly, Supreme Court properlygranted defendants' motions for summary judgment (see Rogers v Rockefeller Group Intl.,Inc., 38 AD3d at 749-750; Hilsman v Sarwil Assoc., L.P., 13 AD3d at 695; Garcia v Delgado Travel Agency, 4AD3d 204 [2004]).
Peters, J.P., Spain, Rose and Egan Jr., JJ., concur. Ordered that the order is affirmed, withone bill of costs.