| Pollina v Oakland's Rest., Inc. |
| 2012 NY Slip Op 03991 [95 AD3d 1190] |
| May 23, 2012 |
| Appellate Division, Second Department |
| Elizabeth Pollina, Respondent, v Oakland's Restaurant,Inc., et al., Appellants. |
—[*1] Rosenberg & Gluck, LLP, Holtsville, N.Y. (Michael V. Buffa of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited by aletter dated September 22, 2011, from so much of an order of the Supreme Court, Suffolk County(Pitts, J.), dated February 25, 2011, as denied that branch of their motion which was for summaryjudgment dismissing the complaint.
Ordered the order is affirmed insofar as appealed from, with costs.
" 'A defendant who moves for summary judgment in a slip-and-fall case has the initialburden of making a prima facie case showing that it neither created the hazardous condition norhad actual or constructive notice of its existence for a sufficient length of time to discover andremedy it' " (Bruk v Razag, Inc., 60AD3d 715, 715 [2009], quoting Sloane v Costco Wholesale Corp., 49 AD3d 522, 523 [2008]; see Granillo v Toys "R" Us, Inc., 72AD3d 1024, 1025 [2010]). Here, the defendants sustained this burden by submitting thetranscript of the deposition testimony of the manager of the restaurant where the subject accidentoccurred, demonstrating that they neither created the allegedly greasy condition that caused theplaintiff's fall nor had actual or constructive notice thereof, since the manager inspected thelanding where the accident allegedly occurred every 5 to 10 minutes during the course of theevening, and did not observe any dark-colored stains or water on the landing prior to theplaintiff's accident (see Cusack v PeterLuger, Inc., 77 AD3d 785, 786 [2010]; DeLeon v Westhab, Inc., 60 AD3d 888 [2009]; Malenda v Great Atl. & Pac. Tea Co.,Inc., 50 AD3d 972, 972-973 [2008]; Sloane v Costco Wholesale Corp., 49AD3d at 523). In opposition, however, the plaintiff raised a triable issue of fact as to whether thedefendants had actual or constructive notice of the alleged hazardous condition by submittingevidence that another restaurant patron had allegedly slipped and fallen on a greasy substance onthe landing one to two hours before the plaintiff's accident, and had informed a restaurantemployee about his fall (see Walters vCostco Wholesale Corp., 51 AD3d 785 [2008]).
We note that the conflict between the plaintiff's original deposition testimony and thecorrection sheet "raises an issue of credibility which may not be resolved on a motion forsummary judgment" (Williams v O & Y Concord 60 Broad St. Co., 304 AD2d 570, 571[2003]; see Breco Envtl. [*2]Contrs., Inc. v Town of Smithtown, 31 AD3d 359, 360[2006]; Surdo v Albany CollisionSupply, Inc., 8 AD3d 655 [2004]).
The defendants' remaining contentions are without merit.
Accordingly, the Supreme Court properly denied that branch of the defendants' motion whichwas for summary judgment dismissing the complaint. Dillon, J.P., Eng, Belen and Sgroi, JJ.,concur.