| Klerman v Fine Fare Supermarket |
| 2012 NY Slip Op 04975 [96 AD3d 907] |
| June 20, 2012 |
| Appellate Division, Second Department |
| Vladimir Klerman, Appellant, v Fine Fare Supermarket,Respondent. |
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Morrison Mahoney, LLP, New York, N.Y. (Jamie K. McAleavey of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Ruchelsman, J.), dated December 22, 2009, 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.
The plaintiff allegedly slipped and fell when he stepped on a piece of "green stuff" in theproduce aisle of the defendant's supermarket. The defendant moved for summary judgmentdismissing the complaint. The Supreme Court granted the motion, in effect, determining that thedefendant made a prima facie showing of its entitlement to judgment as a matter of law and thatthe plaintiff failed to raise a triable issue of fact in opposition. The plaintiff appeals and wereverse.
"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" (Halpern v CostcoWarehouse/Costco Wholesale, 95 AD3d 828, 828 [2d Dept 2012]; see Kokin v Key Food Supermarket,Inc., 90 AD3d 850 [2011]; Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655 [2009]).Here, the defendant failed to meet its burden.
The defendant failed to submit sufficient evidence to make a prima facie showing that itsemployees did not create the allegedly dangerous condition that caused the plaintiff to slip (see Molloy v Waldbaum, Inc., 72AD3d 659, 659-660 [2010]). Additionally, the defendant failed to submit sufficient evidenceto make a prima facie showing that it lacked constructive notice of that condition. "To meet itsinitial burden on the issue of lack of constructive notice, the defendant must offer some evidenceas to when the area in question was last cleaned or inspected relative to the time when theplaintiff fell" (Birnbaum v New YorkRacing Assn., Inc., 57 AD3d 598, 598-599 [2008]; see Goodyear v Putnam/Northern Westchester Bd. of Coop. Educ.Servs., 86 AD3d 551, 552 [2011]). Here, the deposition [*2]testimony of the defendant's manager, which merely referred to thegeneral inspection practices of the supermarket and provided no evidence as to when the produceaisle was last inspected before the plaintiff's fall, was insufficient to satisfy the defendant's initialburden on the issue of lack of constructive notice (see Levine v Amverserve Assn., Inc., 92 AD3d 728, 729 [2012];Birnbaum v New York Racing Assn., Inc., 57 AD3d at 599; Porco v Marshalls Dept. Stores, 30AD3d 284, 284-285 [2006]; Feldmus v Ryan Food Corp., 29 AD3d 940 [2006]).
In light of the defendant's failure to satisfy its prima facie burden on the motion, it isunnecessary to consider whether the papers submitted by the plaintiff in opposition weresufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]). Accordingly, the Supreme Court should have denied the defendant'smotion for summary judgment dismissing the complaint. Mastro, A.P.J., Angiolillo, Austin andSgroi, JJ., concur.