| Leary v Leisure Glen Home Owners Assn., Inc. |
| 2011 NY Slip Op 02633 [82 AD3d 1169] |
| March 29, 2011 |
| Appellate Division, Second Department |
| Ethel M. Leary, Respondent, v Leisure Glen Home OwnersAssociation, Inc., Appellant, et al., Defendants. |
—[*1] Law Offices of Stanley E. Orzechowski, P.C., Nesconset, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant Leisure Glen HomeOwners Association, Inc., appeals, as limited by its brief, from so much of an order of theSupreme Court, Suffolk County (Tanenbaum, J.), entered May 19, 2010, as denied its motion forsummary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of the defendant Leisure Glen Home Owners Association, Inc., for summary judgmentdismissing the complaint insofar as asserted against it is granted.
On January 29, 2002, as she was entering the Leisure Glen Clubhouse (hereinafter theclubhouse), which was owned by the defendant Leisure Glen Home Owners Association, Inc.(hereinafter the defendant), the plaintiff allegedly tripped on a floor mat on the brick floor of theclubhouse vestibule and fell, sustaining injuries. The plaintiff commenced this action against,among others, the defendant. The defendant moved for summary judgment dismissing thecomplaint insofar as asserted against it. The plaintiff opposed the motion, and cross-moved forsummary judgment on the issue of liability as against the defendant. The Supreme Court deniedthe defendant's motion and the plaintiff's cross motion, determining that the parties' differingversions of the manner in which the accident occurred could not be reconciled, and, accordingly,neither the defendant nor the plaintiff was entitled to summary judgment. The defendantappealed, but the plaintiff did not cross-appeal. We reverse the order insofar as appealed from.
"To impose liability upon a defendant in a trip-and-fall action, there must be evidence that adangerous or defective condition existed, and that the defendant either created the condition orhad actual or constructive notice of it" (Dennehy-Murphy v Nor-Topia Serv. Ctr., Inc., 61AD3d 629, 629 [2009]; see Denker v Century 21 Dept. Stores, LLC, 55 AD3d 527, 528[2008]; Rubin v Cryder House, 39 AD3d 840, 840 [2007]; Penn v Fleet Bank, 12AD3d 584 [2004]). "A defendant has constructive notice of a defect when the defect is visibleand apparent, and has existed for a sufficient length of time before the accident that it could havebeen discovered and corrected" (Dennehy-Murphy v Nor-Topia Serv. Ctr., Inc., 61 AD3dat 629; see Gordon v American Museum of Natural History, 67 NY2d 836 [1986];Williams v SNS Realty of Long Is., Inc., 70 AD3d 1034, 1035 [2010]; Pryzywalny vNew York City Tr. Auth., 69 AD3d 598, 598 [2010]; Hayden v Waldbaum, Inc., 63AD3d 679, 679 [2009]; Denker v Century 21 Dept. [*2]Stores, LLC, 55 AD3d at 528; Rubin v Cryder House,39 AD3d at 840).
Here, the defendant satisfied its initial burden of demonstrating its entitlement to judgment asa matter of law. In support of its motion, the defendant submitted the deposition testimony ofPedro Benitez, the clubhouse custodian. Benitez testified that he vacuumed the floor matapproximately two hours prior to the plaintiff's accident. He further testified that he had neverlearned of any complaints concerning the mat and, to his knowledge, no one had ever tripped onit before. The defendant also submitted the deposition testimony of Debra D'Amato, thedefendant's recreation director. D'Amato testified that, prior to the date of the accident, there hadnever been any complaints with regard to the condition of the mat, and there had not been anyaccidents reported which involved the mat. In opposition to the defendant's prima facie showing,the plaintiff failed to raise a triable issue of fact as to whether the floor mat was in a dangerouscondition prior to the plaintiff's fall and, if so, whether the defendant created such condition orhad actual or constructive notice of it (see Williams v SNS Realty of Long Is., Inc., 70AD3d 1034 [2010]; Hayden v Waldbaum, Inc., 63 AD3d 679 [2009]; Denker vCentury 21 Dept. Stores, LLC, 55 AD3d 527 [2008]; Rubin v Cryder House, 39AD3d 840 [2007]; Penn v Fleet Bank, 12 AD3d 584 [2004]). Additionally, contrary tothe plaintiff's contention, there is no evidence in the record that the vestibule floor was moppedon the day of her fall or that the brick floor was slippery as a result of recent mopping or residualeffects of prior cleaning. The plaintiff's contention in this regard is unsupported, speculative, andinsufficient to defeat the defendant's entitlement to judgment as a matter of law (seeFriedenreich v Roosevelt Field Mall Mgt., 18 AD3d 808, 809 [2005]).
Accordingly, the Supreme Court should have granted the defendant's motion for summaryjudgment dismissing the complaint insofar as asserted against it. Covello, J.P., Dickerson, Engand Sgroi, JJ., concur.