| Navetta v Onondaga Galleries LLC |
| 2013 NY Slip Op 03207 [106 AD3d 1468] |
| May 3, 2013 |
| Appellate Division, Fourth Department |
| Andrew Navetta, Respondent, v Onondaga GalleriesLimited Liability Company et al., Appellants. |
—[*1] Stanley Law Offices, LLP, Syracuse (Keith Young of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris,J.), entered November 17, 2011. The order denied the motion of defendants for summaryjudgment.
It is hereby ordered that the order so appealed from is unanimously modified on thelaw by granting the motion in part and dismissing the amended complaint to the extentthat the amended complaint, as amplified by the bill of particulars and supplemental billof particulars, alleges that defendants had actual notice of the allegedly dangerouscondition and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries hesustained when he slipped and fell on a wet floor in a building owned and operated bydefendants. Defendants moved for summary judgment dismissing the amendedcomplaint, and Supreme Court denied the motion. Defendants appeal.
" 'In seeking summary judgment dismissing the [amended] complaint, defendant[s]had the initial burden of establishing that [they] did not create the alleged dangerouscondition and did not have actual or constructive notice of it' " (King v Sam's E., Inc., 81AD3d 1414, 1414-1415 [2011]). We note at the outset that plaintiff did not assertthat defendants created the allegedly dangerous condition, i.e., the wet floor on whichplaintiff fell, and thus the only issue before the court was whether defendants had actualor constructive notice thereof (see generally Wesolek v Jumping Cow Enters., Inc., 51 AD3d1376, 1377 [2008]). Consequently, the issue whether defendants created the relevantcondition was not before the court, and the court therefore erred in determining in itsbench decision that there is a question of fact on that issue.
Regarding the issue of actual notice, we agree with defendants that the courterred in denying the motion with respect to the claim that defendants had actual notice ofthe allegedly dangerous condition, and we therefore modify the order accordingly. Toestablish that they did not have actual notice of the allegedly dangerous condition,defendants were required to show [*2]that they did notreceive any complaints concerning the area where plaintiff fell and were unaware of anywater or other substance in that location prior to plaintiff's accident (see Costanzo vWoman's Christian Assn. of Jamestown, 92 AD3d 1256, 1257 [2012]; Quinn v Holiday Health & FitnessCtrs. of N.Y., Inc., 15 AD3d 857, 857 [2005]). Here, defendantssubmitted the affidavit of the leasing director and general manager of the building inwhich plaintiff fell (general manager), wherein he averred that no leak or spill wasreported to him on the morning of the accident, and that neither he nor any otheremployees at the building observed such a leak or spill during an inspection of thepremises that morning. Defendants therefore met their initial burden on the issueof actual notice, and plaintiff failed to raise an issue of fact in opposition (seegenerally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).Contrary to defendants' contention, however, we conclude that the court properlydenied the motion with respect to the claim that defendants had constructive notice of theallegedly dangerous condition. Defendants failed to meet their initial burden on that issueinasmuch as their submissions raise issues of fact whether the wet floor "was visible andapparent and existed for a sufficient length of time prior to plaintiff's fall to permit[defendants] to discover and remedy it" (King, 81 AD3d at 1415; see Russo v YMCA of GreaterBuffalo, 12 AD3d 1089, 1089-1090 [2004], lv dismissed 5 NY3d 746[2005]; see generally Gordon v American Museum of Natural History, 67 NY2d836, 837 [1986]; Zuckerman, 49 NY2d at 562). The fact that plaintiff did notnotice water on the floor before he fell does not establish defendants' entitlement tojudgment as a matter of law on the issue whether that condition was visible and apparent(see Gwitt v Denny's, Inc.,92 AD3d 1231, 1232 [2012]; see also King, 81 AD3d at 1415;Russo, 12 AD3d at 1089). Indeed, defendants raised a question of fact withrespect to that issue by submitting plaintiff's deposition testimony in which he stated thathe observed water on the floor after he fell, as well as the general manager's depositiontestimony in which he stated that, after plaintiff's fall, he observed a puddle of water thatwas 10 inches in diameter on the floor in proximity to the area where plaintiff fell(see Gwitt, 92 AD3d at 1232). Moreover, inasmuch as defendants failed tosubmit evidence with respect to the specific time when the area where plaintiff fell waslast inspected, there is an issue of fact whether the defect in question existed for asufficient length of time prior to plaintiff's fall to permit defendants to discover andremedy it (cf. Quinn, 15 AD3d at 857-858).
Even assuming, arguendo, that defendants established as a matter of law that they didnot have constructive notice of the particular condition at issue here, we conclude that,based on defendants' own submissions, "an inference could be drawn that defendant[s]had actual knowledge of a recurrent dangerous condition and therefore could be chargedwith constructive notice of each specific reoccurrence of the condition" (Chrisler v Spencer, 31 AD3d1124, 1125 [2006]; seeAnderson v Great E. Mall, L.P., 74 AD3d 1760, 1761 [2010]; see generallyZuckerman, 49 NY2d at 562). Although defendants submitted the affidavit of thegeneral manager in which he averred that there were no recurrent leaks around the timeof plaintiff's fall because the roof in the area where plaintiff fell had been replaced beforethe accident, that statement conflicts with the deposition testimony provided by thegeneral manager that he did not remember when the roof was replaced. "[T]he conflictbetween [that] deposition testimony and . . . affidavit raises a question ofcredibility to be resolved at trial" (Gwitt, 92 AD3d at 1232). Inasmuch as theburden never shifted to plaintiff to raise a triable issue of fact regarding the issue ofconstructive notice, we do not address defendants' remaining contentions concerning thesufficiency of plaintiff's opposing papers (see Dengler v Posnick, 83 AD3d 1385, 1386-1387 [2011]).Present—Centra, J.P., Fahey, Carni, Sconiers and Martoche, JJ.