| Halpern v Costco Warehouse/Costco Wholesale |
| 2012 NY Slip Op 03407 [95 AD3d 828] |
| May 1, 2012 |
| Appellate Division, Second Department |
| Dale Halpern et al., Appellants, v CostcoWarehouse/Costco Wholesale, Respondent. |
—[*1] Gallagher, Walker, Bianco & Plastaras, Mineola, N.Y. (Dominic P. Bianco and ToniAnnMascia of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Nassau County (Feinman, J.), dated March 2, 2011, 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.
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 alleged hazardous condition nor hadactual or constructive notice of its existence for a sufficient length of time to discover andremedy it (see Kokin v Key FoodSupermarket, Inc., 90 AD3d 850 [2011]; Amendola v City of New York, 89 AD3d 775 [2011]; Lee v Port Chester Costco Wholesale,82 AD3d 842 [2011]). A defendant has constructive notice of a hazardous condition onproperty when the condition is visible and apparent, and has existed for a sufficient length oftime to afford the defendant a reasonable opportunity to discover and remedy it (see Gordon vAmerican Museum of Natural History, 67 NY2d 836, 837-838 [1986]). In addition, adefendant who has actual knowledge of a particular ongoing and recurring hazardous conditionmay be charged with constructive notice of each specific reoccurrence of that condition (seeAmendola v City of New York, 89 AD3d at 775-776; Milano v Staten Is. Univ. Hosp., 73 AD3d 1141 [2010]).
Here, the defendant established its entitlement to judgment as a matter of law by offeringevidence that it neither created the alleged hazardous condition which caused the injuredplaintiff's fall, nor had actual or constructive notice of it (see Lee v Port Chester CostcoWholesale, 82 AD3d at 842; Cusackv Peter Luger, Inc., 77 AD3d 785, 786 [2010]; Sloane v Costco Wholesale Corp., 49 AD3d 522, 523 [2008]).However, in opposition, the plaintiffs submitted evidence sufficient to raise a triable issue of factas to whether the defendant can be charged with constructive notice on the theory that it wasaware of a particular recurring condition in the area where the accident occurred which it failedto adequately address (see Black vKohl's Dept. Stores, Inc., 80 AD3d 958, 960-961 [2011]; Milano [*2]v Staten Is. Univ. Hosp., 73 AD3d at 1142; Lehr v Mothers Work, Inc., 73 AD3d564 [2010]; Erikson v J.I.B. RealtyCorp., 12 AD3d 344, 345-346 [2004]; cf. Piacquadio v Recine Realty Corp., 84NY2d 967, 969 [1994]; DeJesus v NewYork City Hous. Auth., 53 AD3d 410, 411 [2008], affd 11 NY3d 889 [2008];Gloria v MGM Emerald Enters., 298 AD2d 355, 356 [2002]). Accordingly, the SupremeCourt should have denied the defendant's motion for summary judgment dismissing thecomplaint.
In light of our determination, we need not reach the plaintiffs' remaining contentions. Balkin,J.P., Eng, Hall and Sgroi, JJ., concur.