| Oliveri v Vassar Bros. Hosp. |
| 2012 NY Slip Op 03614 [95 AD3d 973] |
| May 8, 2012 |
| Appellate Division, Second Department |
| Sabrina Oliveri, Appellant, v Vassar Brothers Hospital,Respondent. |
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Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Melissa A.Murphy-Petros, Richard E. Lerner, and Richard Mermelstein of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Orange County (Bartlett, J.), datedJanuary 25, 2011, as granted the defendant's motion for summary judgment dismissing thecomplaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendant's motion for summary judgment dismissing the complaint is denied.
The plaintiff allegedly was injured when she slipped and fell while departing from thedefendant hospital following a visit she made to her grandmother, who was a patient there.According to the plaintiff's deposition testimony, there were two vestibules which allowed foraccess to the hospital lobby, and the vestibule she traversed when she entered the hospital atapproximately 1:00 p.m. was different from the one she used when she attempted to leave thehospital at approximately 2:00 p.m. There are two sets of automatic doors serving each vestibule,there is one set of exterior doors that opens to outdoor cement walkways, and there is one set ofinterior doors that opens into the lobby. Although it had not snowed on the day of the plaintiff'saccident, there was snow still on the ground from a prior snowfall, and the outdoor cementwalkways leading to the vestibules were wet from melted snow. The plaintiff further testified ather deposition that the vestibules had tile floors, and that there was a mat in the vestibule whereshe fell that covered approximately 75% of its tile floor. She explained that she slipped whilewalking after she had passed through the set of interior doors, and after having almost completelytraversed over the mat. Specifically, the plaintiff asserted that she slipped when she reached theend of the mat prior to reaching the exterior doors. The plaintiff further explained that, while herleft foot was still on the mat, she slipped as she stepped with her right foot on to a portion of thetile floor that was not covered by the mat, causing her to fall forward and onto the tile floor,striking her left side. She first became aware of the wet tile floor when she felt that her clotheswere wet after she had fallen on the floor and was lying there. The plaintiff commenced thisaction against the defendant to recover damages for her personal injuries. The defendant movedfor summary judgment dismissing the complaint. The Supreme Court granted the motion. Theplaintiff appeals, and we reverse.
" 'To demonstrate its entitlement to summary judgment in a slip-and-fall case, a [*2]defendant must establish, prima facie, that it did not create thecondition that allegedly caused the fall, and did not have actual or constructive notice of thatcondition for a sufficient length of time to remedy it' " (Cummins v New York Methodist Hosp., 85 AD3d 1082, 1083[2011], quoting Molloy v Waldbaum,Inc., 72 AD3d 659, 659-660 [2010]; see Milano v Staten Is. Univ. Hosp., 73 AD3d 1141 [2010]). "Tomeet its 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]; see Mei Xiao Guo v Quong Big RealtyCorp., 81 AD3d 610, 611 [2011]).
In support of its motion, the defendant relied upon, inter alia, the deposition testimony of itsDirector of Engineering. His department was in charge of, inter alia, cleaning and maintainingthe vestibule where the accident occurred, as well as the outdoor walkways. At his deposition,the Director of Engineering admitted that he did not know if anybody from his department hadcleaned or inspected the vestibule where the plaintiff fell, or the outdoor walkway connectedthereto, at any time during the day prior to the plaintiff's accident. Also, in reviewing his workorders, he acknowledged that there was no specific entry for work done in that area on that dateeither. Accordingly, the defendant failed to establish, prima facie, that it did not haveconstructive notice of the condition that allegedly caused the plaintiff's fall, as it failed to profferany evidence to establish when the area in question was last inspected or cleaned relative to thetime when the plaintiff fell (see Britto vGreat Atl. & Pac. Tea Co., Inc., 21 AD3d 436, 437 [2005]).
As the defendant failed to meet its prima facie burden, it is not necessary to consider thesufficiency of the plaintiff's opposition papers (see Cummins v New York MethodistHosp., 85 AD3d at 1083). Accordingly, the Supreme Court should have denied thedefendant's motion for summary judgment dismissing the complaint. Rivera, J.P., Florio,Chambers and Cohen, JJ., concur.