Guerrero v Duane Reade, Inc.
Annotate this CaseDecided on December 12, 2013
Mazzarelli, J.P., Sweeny, DeGrasse, Manzanet-Daniels, Feinman, JJ.
11328 308503/09
[*1]Julio Guerrero, Plaintiff-Appellant,
v
Duane Reade, Inc., Defendant-Respondent.
The Sullivan Law Firm, New York (James A. Domini of
counsel), for appellant.
Chesney & Nicholas, LLP, Baldwin (Harry T. Brew of
counsel), for respondent.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered November 23, 2012, which granted defendant Duane Reade, Inc.'s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
In this slip and fall action, defendant failed to establish as a matter of law that it did not create or have actual or constructive notice of a hazardous condition, since it failed to offer specific evidence as to its activities on the day of the accident, including, but not limited to, when the area where plaintiff fell was last inspected (see e.g. Cater v Double Down Realty Corp., 101 AD3d 506 [1st Dept 2012]). In addition, plaintiff testified it had been raining or drizzling continuously prior to his accident and that he had seen mats rolled up in front of the store, but not placed down where he fell, giving rise to a question of fact as to whether defendant knew or should have known of the dangerous condition (Signorelli v Great Atl. &
Pac. Tea Co., Inc., 70 AD3d 439, 440 [1st Dept 2010]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 12, 2013
CLERK
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