| Santos v 786 Flatbush Food Corp. |
| 2011 NY Slip Op 08137 [89 AD3d 828] |
| November 9, 2011 |
| Appellate Division, Second Department |
| Maria Santos, Appellant, v 786 Flatbush Food Corp. et al.,Respondents, et al., Defendants. |
—[*1] Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (AntonPiotroski of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Schneier, J.), dated April 23, 2010, which granted the motionof the defendants 786 Flatbush Food Corp., Key Food Stores Co-Op, Inc., 786 Flatbush FoodCorp., doing business as Key Food, Joseph Kazlow, and Save-A-Dollar Discount, a New YorkGeneral Partnership, for summary judgment dismissing the complaint insofar as asserted againstthem.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion which was for summary judgment dismissing the complaint insofar asasserted against the defendants 786 Flatbush Food Corp. and 786 Flatbush Food Corp., doingbusiness as Key Food, and substituting therefor a provision denying that branch of the motion; asso modified, the order is affirmed, without costs or disbursements.
The plaintiff allegedly was injured when she slipped and fell on water in the aisle of asupermarket. An out-of-possession landlord is not liable for injuries sustained on the premisesunless a duty to maintain the premises in reasonably safe condition is "imposed by statute orassumed by contract or a course of conduct" (Alnashmi v Certified Analytical Group,Inc., 89 AD3d 10, 18 [2d Dept 2011]; see Rivera v Nelson Realty, LLC, 7 NY3d 530, 534 [2006];Chapman v Silber, 97 NY2d 9, 21 [2001]). Here, where the complaint sounds incommon-law negligence and does not allege the violation of a statute, the defendants 786Flatbush Food Corp., Key Food Stores Co-Op, Inc., 786 Flatbush Food Corp., doing business asKey Food, Joseph [*2]Kazlow, and Save-A-Dollar Discount, aNew York General Partnership (hereinafter collectively the movants), established, prima facie,that Save-A-Dollar Discount, a New York General Partnership, was an out-of-possessionlandlord which was not bound by contract or course of conduct to make nonstructural repairs(see Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10, 18-19 [2011]). Inopposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v ProspectHosp., 68 NY2d 320 [1986]). Accordingly, the Supreme Court properly granted thosebranches of the movants' motion which were for summary judgment dismissing the complaintinsofar as asserted against Save-A-Dollar Discount, a New York General Partnership, and itsmember, Joseph Kazlow.
The Supreme Court also properly granted that branch of the movants' motion which was forsummary judgment dismissing the complaint insofar as asserted against the defendant Key FoodStores Co-Op, Inc., since it established, prima facie, that it did not own the subject supermarketwhere the incident occurred or exercise control over the daily operation of the subject store (see generally Martinez v Higher PoweredPizza, Inc., 43 AD3d 670 [2007]). In opposition, the plaintiff failed to raise a triableissue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
The Supreme Court, however, should have denied that branch of the movants' motion whichwas for summary judgment dismissing the complaint insofar as asserted against the defendants786 Flatbush Food Corp. and 786 Flatbush Food Corp., doing business as Key Food (hereinaftertogether the Food Corp. defendants). The Food Corp. defendants are the tenants operating thesupermarket where the accident occurred and, thus, they had the burden of establishing, primafacie, that they did not create the condition that allegedly caused the fall or did not have actual orconstructive notice of that condition for a sufficient length of time to remedy it (see Arzu v County of Nassau, 76 AD3d1036 [2010]; Edwards v Great Atl.& Pac. Tea Co., Inc., 71 AD3d 721 [2010]; Gregg v Key Food Supermarket, 50 AD3d 1093 [2008]). "To meetits initial burden on the issue of lack of constructive notice, the defendant must offer someevidence as to when the area in question was last cleaned or inspected relative to the time whenthe plaintiff fell" (Birnbaum v NewYork Racing Assn., Inc., 57 AD3d 598, 598-599 [2008]). Since the movants failed tooffer any evidence as to when the accident site was last inspected or cleaned prior to theplaintiff's fall, merely submitting evidence as to the Food Corp. defendants' general cleaningpractice, they failed to establish, prima facie, that those defendants did not have constructivenotice of the alleged hazardous condition (see Schiano v Mijul, Inc., 79 AD3d 726 [2010]; Farrell v Waldbaum's, Inc., 73 AD3d846 [2010]; Ames v Waldbaum,Inc., 34 AD3d 607 [2006]). As the movants failed to meet their initial burden withrespect to the Food Corp. defendants, it is not necessary to review the sufficiency of the plaintiff'sopposition papers. Skelos, J.P., Chambers, Sgroi and Miller, JJ., concur.