Stryker v D'Agostino Supermarkets Inc.

Stryker v D'Agostino Supermarkets Inc. 2011 NY Slip Op 07483 Decided on October 25, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 25, 2011
Tom, J.P., DeGrasse, Freedman, Román, JJ.
5645 106313/08

[*1]Nina Lewis Stryker as Executor, etc., Plaintiff-Appellant,

v

D'Agostino Supermarkets Inc., et al., Defendants-Respondents.




Pollack, Pollack, Isaac & De Cicco, New York (Jillian Rosen
of counsel), for appellant.
Torino & Bernstein, P.C., Mineola (Charles R. Strugatz of
counsel), for respondents.

Order, Supreme Court, New York County (Carol Edmead, J.), entered June 16, 2010, which granted defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to deny summary judgment as to defendant D'Agostino Supermarkets Inc., and otherwise affirmed, without costs.

In this personal injury action, plaintiff Mirjana Lewis alleges that she tripped and fell on a raised corner of a mat located in a vestibule of a D'Agostino's supermarket. To establish their entitlement to summary judgment, defendants were required to demonstrate as a matter of law that they maintained the subject property in a reasonably safe condition and neither created the alleged dangerous condition nor had actual or constructive notice
thereof (see Ross v Betty G. Reader Revocable Trust, 86 AD3d 419, 421, [2011]).

The record shows that a question of fact exists as to constructive notice due to evidence that D'Agostino was "aware of an ongoing and recurring unsafe condition which regularly went unaddressed" (Mazerbo v Murphy, 52 AD3d 1064, 1066 [2008], lv dismissed 11 NY3d 770 [2008] [internal quotation marks omitted]). Contrary to D'Agostino's contention, the supermarket patron's deposition testimony that she made multiple complaints to the supermarket's manager prior to the accident was sufficient to establish that D'Agostino had notice of the hazardous condition that caused plaintiff to trip and fall (see Simoni v 2095 Cruger Assoc., 285 AD2d 431, 432 [2001]).

However, summary judgment was properly granted in favor of the owner of the premises, New 56-79 IG Associates, L.P., and its managing agent, BLDG Management Co., Inc. In light of the owner's status as an out-of-possession landlord, plaintiff was required, but failed, to show "that the purported hazard constituted a structural or design defect that violated a
specific statutory provision" (Boateng v Four Plus Corp., 22 AD3d 323, 324 [2005]).

We find the parties' remaining arguments unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 25, 2011

CLERK