| Goodyear v Putnam/Northern Westchester Bd. of Coop. Educ.Servs. |
| 2011 NY Slip Op 05950 [86 AD3d 551] |
| July 12, 2011 |
| Appellate Division, Second Department |
| Margaret Goodyear, Appellant, v Putnam/NorthernWestchester Board of Cooperative Educational Services et al.,Respondents. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Westchester County (Liebowitz, J.), entered March 3, 2010, which grantedthe defendants' 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.
On the morning of July 7, 2006, the plaintiff was employed as a private nurse for ahandicapped teenager who attended school at the defendant Pines Bridge Program, which isoperated and managed by the defendant Putnam/Northern Westchester Board of CooperativeEducational Services. The plaintiff took her client into a bathroom at the school, where hesuffered a seizure. In the course of assisting him, the plaintiff allegedly fell and sustained injurieswhen she slipped on urine, which was on the floor of the bathroom before she and her client hadentered.
The plaintiff commenced this action alleging, inter alia, that the defendants had actual orconstructive notice of a hazardous condition and failed to remedy it. The defendants moved forsummary judgment dismissing the complaint, and the Supreme Court granted the motion,determining that the defendants had established prima facie entitlement to judgment as a matterof law and the plaintiff had failed to raise a triable issue of fact. We reverse.
A defendant moving for summary judgment in a slip-and-fall case has the burden ofestablishing, prima facie, that it neither created the alleged hazardous condition nor had actual orconstructive notice of its existence (seeArzu v County of Nassau, 76 AD3d 1036 [2010]; Perez v New York City Hous. Auth., 75 AD3d 629 [2010]; Edwards v Great Atl. & Pac. Tea Co.,Inc., 71 AD3d 721 [2010]). A defendant has constructive notice of a hazardouscondition on property when the condition is visible and apparent, and has existed for a length oftime sufficient to afford the defendant a reasonable opportunity to discover and remedy it (seeGordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). "To meet itsinitial burden on the issue of lack of constructive notice, the defendant must [*2]offer some evidence as to when the area in question was lastcleaned or inspected relative to the time when the plaintiff fell" (Birnbaum v New York Racing Assn.,Inc., 57 AD3d 598, 598-599 [2008]; see Schiano v Mijul, Inc., 79 AD3d 726, 726-727 [2010]; Farrell v Waldbaum's, Inc., 73 AD3d846, 847 [2010]; Ames vWaldbaum, Inc., 34 AD3d 607 [2006]).
Here, the deposition testimony submitted by the defendants in support of their motion forsummary judgment merely referred to general cleaning practices and provided no evidenceregarding any specific cleaning or inspection of the area in question on the day of the plaintiff'sfall. Thus, the defendants failed to establish their prima facie entitlement to judgment as a matterof law (see Schiano v Mijul, Inc., 79 AD3d at 726-727; Farrell v Waldbaum's,Inc., 73 AD3d at 847; Birnbaum v New York Racing Assn., Inc., 57 AD3d at598-599; cf. Perez v New York City Hous. Auth., 75 AD3d at 630). The defendants'failure to meet their prima facie burden required denial of their motion, regardless of thesufficiency of the plaintiff's papers in opposition (see Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]). Prudenti, P.J., Angiolillo, Dickerson and Roman, JJ., concur.