| Bedell v Rocking Horse Ranch Corp. |
| 2012 NY Slip Op 03260 [94 AD3d 1389] |
| April 26, 2012 |
| Appellate Division, Third Department |
| Beverly Bedell, Respondent, v Rocking Horse Ranch Corporationet al., Appellants. |
—[*1] Finkelstein & Partners, L.L.P., Newburgh (James W. Shuttleworth III of counsel), forrespondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Connolly, J.), entered August 1,2011 in Ulster County, which, among other things, partially denied defendants' motion forsummary judgment dismissing the complaint.
Plaintiff was injured when she slipped and fell on a clear liquid substance while walkingfrom the swimming pool to the women's locker room at defendants' resort. Defendants eventuallymoved for summary judgment dismissing the complaint asserting that they lacked actual orconstructive notice of the allegedly wet condition that caused plaintiff's fall. Plaintiffcross-moved for, among other things, a preclusion order or sanction pursuant to CPLR 3126regarding items that defendants had allegedly destroyed or failed to produce. Supreme Courtdirected defendants to produce or explain the nonexistence of certain information within 30 days,and this reportedly was done. The court also granted defendants' motion on the issue of actualnotice, but denied the motion regarding constructive notice. Defendants appeal, arguing that theirsummary judgment motion should have been granted in its entirety.
Defendants had the threshold burden of establishing that they maintained their property in areasonably safe condition, they did not create the condition that caused the accident or have [*2]actual or constructive notice of such condition (see Carpenter v J. Giardino, LLC, 81AD3d 1231, 1231 [2011], lv denied 17 NY3d 710 [2011]; Stewart v Canton-Potsdam Hosp. Found.,Inc., 79 AD3d 1406, 1406-1407 [2010]). Defendants' proof included testimony that thepool and surrounding areas were inspected early each morning and that, throughout the day,routine inspections were conducted about every hour. Occasionally, these inspections revealedthat the hallway was wet in areas between the pool and locker rooms and appropriate dryingmeasures would then be taken. Defendants also submitted plaintiff's deposition in support oftheir motion. Her testimony revealed that, after using the pool, she dried her feet and then walkedbarefoot approximately 95 feet from the pool to the section of tiled hallway where the accidentoccurred. She acknowledged that the floors were clear and dry the entire way. She stated that sheslipped on a clear liquid, but she was unable to identify the liquid or estimate the size of the wetarea. Defendants submitted sufficient evidence to satisfy their initial burden.
The burden then shifted to plaintiff, and she does not contest Supreme Court's finding thatdefendants did not have actual notice of the condition, but asserts, as Supreme Court found, thata factual issue exists regarding constructive notice. "Constructive notice requires a showing thatthe condition was visible and apparent and existed for a sufficient period of time prior to theaccident to permit defendants to discover it and take corrective action" (Boyko vLimowski, 223 AD2d 962, 964 [1996] [citations omitted]; accord Cantwell v Rondout Sav. Bank,55 AD3d 1031, 1032 [2008]). No proof was submitted by plaintiff making such a showing.Plaintiff further contends that the fact that on previous occasions water from the pool had beentracked into the hallway shows constructive notice of an ongoing unsafe condition of whichdefendants were aware. However, plaintiff's testimony established that the entire walkway fromthe pool to the place of her accident—some 95 feet away—was dry, and anyconclusion that the unidentified liquid that caused her fall was actually water tracked in from thepool would be entirely speculative (see Carpenter v J. Giardino, LLC, 81 AD3d at 1233;see also Mitchell v Uniforms USA,Inc., 82 AD3d 1474 [2011]; Cochetti v Wal-Mart Stores, Inc., 24 AD3d 852, 853 [2005]).Plaintiff's proof does not raise a triable issue regarding constructive notice.
Finally, we are unpersuaded by plaintiff's assertion that summary judgment should be deniedon the alternative ground that defendants frustrated the discovery process. Despite some initialinconsistent responses, defendants sufficiently established that the inspection checklists and logsfrom the day of the accident would have been routinely discarded before this action wascommenced over a year after the accident. Defendants reportedly searched in various storagelocations and did not find the documents. Supreme Court's handling of this issue fell well withinits discretion (see Dobson v Gioia,39 AD3d 995, 998 [2007]).
Peters, P.J., Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order is modified,on the law, with costs to defendants, by reversing so much thereof as partially denied defendants'motion for summary judgment; motion granted in its entirety and complaint dismissed; and, as somodified, affirmed.