| Amendola v City of New York |
| 2011 NY Slip Op 08104 [89 AD3d 775] |
| November 9, 2011 |
| Appellate Division, Second Department |
| Thomas Amendola, Appellant, v City of New York,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow andAlyse Fiori of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Kerrigan, J.), dated August 6, 2010, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
The plaintiff allegedly slipped and fell on grease on the steps of a trailer which housed aworkers' locker room. The trailer was located inside an enclosed sanitation garage. The defendantCity of New York moved for summary judgment dismissing the complaint, contending that it didnot create or have actual or constructive notice of the alleged hazardous condition. The SupremeCourt granted the motion. We reverse.
A defendant who moves for summary judgment in a slip-and-fall case has the initial burdenof making a prima facie showing that it neither created the hazardous condition nor had actual orconstructive notice of its existence for a sufficient length of time to discover and remedy it (see Schiano v Mijul, Inc., 79 AD3d726 [2010]; Walsh v Super Value,Inc., 76 AD3d 371 [2010]; Gambino v City of New York, 60 AD3d 627 [2009]). "To meet itsinitial burden on the issue of . . . constructive notice, the defendant must offer someevidence as to when the area in question was last cleaned or inspected [*2]relative to the time when the plaintiff fell" (Birnbaum v New York Racing Assn.,Inc., 57 AD3d 598, 598-599 [2008]; see Mei Xiao Guo v Quong Big Realty Corp., 81 AD3d 610[2011]). Additionally, a defendant who has actual knowledge of an ongoing and recurringdangerous condition may be charged with constructive notice of each specific reoccurrence of thecondition (see Milano v Staten Is. Univ.Hosp., 73 AD3d 1141 [2010]; Kohout v Molloy Coll., 61 AD3d 640 [2009]; Brown v Linden Plaza Hous. Co., Inc.,36 AD3d 742 [2007]; Roussos vCiccotto, 15 AD3d 641 [2005]). A general awareness of a condition, however, isinsufficient to constitute constructive notice of the specific condition that caused the plaintiff tofall (see Kostic v Ascent Media Group,LLC, 79 AD3d 818 [2010]; Mauge v Barrow St. Ale House, 70 AD3d 1016 [2010]; Panetta v Phoenix Beverages, Inc., 29AD3d 659 [2006]). A defendant cannot satisfy its initial burden as the movant merely bypointing to gaps in the plaintiff's case (see McPhaul v Mutual of Am. Life Ins. Co., 81 AD3d 609 [2011];Davranov v 470 Realty Assoc.,LLC, 79 AD3d 697 [2010]; Edwards v Great Atl. & Pac. Tea Co., Inc., 71 AD3d 721 [2010]).
Here, the defendant failed to meet its prima facie burden of establishing its entitlement tojudgment as a matter of law and, therefore, the Supreme Court should have denied its motion forsummary judgment dismissing the complaint. Given the location of the accident site, thedefendant failed to establish, prima facie, that the greasy substance was not created by itsemployees (see Brown v OutbackSteakhouse, 39 AD3d 450 [2007]; Kelly v Media Serv. Corp., 304 AD2d 717[2003]; Hopkins v Statewide Indus. Catering Group, 272 AD2d 577 [2000]). Thedefendant also failed to submit any evidence as to when the subject staircase was last cleaned orinspected. Hence, it failed to establish, prima facie, that it did not have constructive notice of thealleged hazardous condition (see Gray vLifetitz, 83 AD3d 780 [2011]; Alston v Starrett City Assoc., 72 AD3d 711 [2010]; Pryzywalny v New York City Tr.Auth., 69 AD3d 598 [2010]). Moreover, the defendant's submissions failed to eliminateall triable issues of fact as to whether it had actual notice of a reoccurring hazardous conditionwhich routinely went unaddressed (seeMilano v Staten Is. Univ. Hosp., 73 AD3d 1141 [2010]; Kohout v Molloy Coll., 61 AD3d640 [2009]; Brown v Linden PlazaHous. Co., Inc., 36 AD3d 742 [2007]; Roussos v Ciccotto, 15 AD3d 641 [2005]). Since the defendantfailed to meet its initial burden as the movant, we need not review the sufficiency of theplaintiff's opposition papers (see Britto vGreat Atl. & Pac. Tea Co., Inc., 21 AD3d 436 [2005]; Joachim v 1824 Church Ave., Inc., 12AD3d 409 [2004]). Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur.