Kowalchyk-Morris v Hofstra Univ.

[*1] Kowalchyk-Morris v Hofstra Univ. 2004 NY Slip Op 50756(U) Decided on July 6, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 6, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., GOLIA and RIOS, JJ.
NO. 2003-1173 RI C

DIANE KOWALCHYK-MORRIS, Appellant,

against

HOFSTRA UNIVERSITY, Respondent, -and- RUTTERA and SONS, Defendant.

Appeal by plaintiff from an order of the Civil Court, Richmond County

(P. Straniere, J.), entered June 13, 2003, which granted defendant Hofstra University's motion for summary judgment.

Order unanimously reversed without costs and motion by defendant Hofstra University for summary judgment denied.

"The proponent of a summary judgment motion must make a prima facie
showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case . . . . In this slip-and-fall case, the defendant[ ] bore the initial burden of submitting evidence that [it] did not create the allegedly defective or dangerous condition, and did not have actual or constructive notice thereof" (Avellino v Trizechahn Newport, Inc., 5 AD3d 519 [2004] [citations and internal quotation marks omitted]).

Viewing the testimony contained in the transcripts of the examinations before trial, which were annexed to the motion papers submitted by defendant Hofstra University, in the light most [*2]favorable to plaintiff, the non-moving party (see Corvino v Mount Pleasant Cent. School Dist., 305 AD2d 364 [2003]; Torres v Jeremias, 283 AD2d 484 [2001]), Hofstra University's employees cut the grass one or two days before plaintiff fell, the grass clippings were intended to remain on the grass, albeit as mulch, and that if the grass was mowed while it was wet, clumps of grass could have formed. In addition, Hofstra University's director of grounds and landscaping and/or his assistant looked at the intramural field after it was mowed, but before plaintiff fell. As a result, the moving papers failed to establish, as a matter of law, that Hofstra University did not create the condition or possess notice of its existence. Moreover, plaintiff submitted an
affidavit from a witness who stated that on the date of plaintiff's injury, she observed clumps of grass on the field, people slipping on clumps of grass before plaintiff fell and plaintiff falling after slipping on a clump of grass. In light of the foregoing, Hofstra University's motion for summary judgment should have been denied (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Avellino, 5 AD3d 519).
Decision Date: July 06, 2004