Granillo v. Toys "R" Us, Inc. — 72 A.D.3d 1024

Majority

p. 1024

Mayra Granillo, Respondent, v Toys “R” Us, Inc., et al., Appellants.

[899 NYS2d 377]

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered November 19, 2009, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

p. 1025

On July 2, 2004, the plaintiff was shopping in a Toys “R” Us store in Yonkers owned and operated by the defendants. As she walked toward the exit, she fell, allegedly sustaining injuries. Immediately after her fall, she observed melted or melting ice cream on the floor near where she fell, which condition allegedly caused her to slip and fall. The plaintiff commenced this action to recover damages for personal injuries. The defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the defendants’ motion. We affirm.

“ ‘A defendant who moves for summary judgment in a slip- and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it’ ” (Aguirre v Paul, 54 AD3d 302 , 303 [2008], quoting Prusak v New York City Hous. Auth., 43 AD3d 1022 , 1022 [2007]; see Lewis v Metropolitan Transp. Auth., 64 NY2d 670 , 671 [1984]). “ ‘A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected’ ” (Williams v SNS Realty of Long Is., Inc., 70 AD3d 1034 , 1035 [2010], quoting Hayden v Waldbaum, Inc., 63 AD3d 679 , 679 [2009]; see Gordon v American Museum of Natural History, 67 NY2d 836 , 837-838 [1986]). “To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598 , 598-599 [2008]; see Williams v SNS Realty of Long Is., Inc., 70 AD3d at 1035 ; Pryzywalny v New York City Tr. Auth., 69 AD3d 598 [2010]; Musachio v Smithtown Cent. School Dist., 68 AD3d 949 , 949-950 [2009]; Sherry v Wal-Mart Stores E., L.P., 67 AD3d 992 , 993-994 [2009]; Holub v Pathmark Stores, Inc., 66 AD3d 741 , 742 [2009]; Braudy v Best Buy Co., Inc., 63 AD3d 1092 , 1092 [2009]). Here, the defendants failed to satisfy their initial burden. Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint regardless of the sufficiency of the plaintiff’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Mastro, J.P., Dickerson, Belen and Chambers, JJ., concur.

Cases cited

Aguirre v. Paul 54 AD3d 302 N.Y. App. Div. 2008-08-05 at 303 p. 1025
Prusak v. New York City Housing Authority 43 AD3d 1022 N.Y. App. Div. 2007-09-18 at 1022 p. 1025
Lewis v. Metropolitan Transportation Authority 64 NY2d 670 N.Y. 1984-12-11 at 671 p. 1025
Williams v. SNS Realty of Long Island, Inc. 70 AD3d 1034 N.Y. App. Div. 2010-02-23 at 1035 p. 1025
Hayden v. Waldbaum, Inc. 63 AD3d 679 N.Y. App. Div. 2009-06-02 at 679 p. 1025
Gordon v. American Museum of Natural History 67 NY2d 836 N.Y. 1986-03-25 at 837-838 p. 1025
Birnbaum v. New York Racing Ass'n 57 AD3d 598 N.Y. App. Div. 2008-12-09 at 598-599 p. 1025
Pryzywalny v. New York City Transit Authority 69 AD3d 598 N.Y. App. Div. 2010-01-05 p. 1025
Musachio v. Smithtown Central School District 68 AD3d 949 N.Y. App. Div. 2009-12-15 at 949-950 p. 1025
Sherry v. Wal-Mart Stores East, L.P. 67 AD3d 992 N.Y. App. Div. 2009-11-24 at 993-994 p. 1025
Holub v. Pathmark Stores, Inc. 66 AD3d 741 N.Y. App. Div. 2009-10-13 at 742 p. 1025
Winegrad v. New York University Medical Center 64 NY2d 851 N.Y. 1985-02-12 p. 1025