Quinn v Greenblatt Family Assoc. LLC

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Quinn v Greenblatt Family Assoc. LLC 2021 NY Slip Op 33496(U) June 16, 2021 Supreme Court, Orange County Docket Number: Index No. EF011360-2018 Judge: Catherine M. Bartlett Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. EF011360-2018 FILED: ORANGE COUNTY CLERK 06/16/2021 10:30 AM NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 06/16/2021 SUPREME COURT-STATE OF NEW YORK IAS PART-ORANGE COUNTY Present: HON, CATHERINE M, BARTLETT, A.J.S.C, SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE -·····--·······-·-·········-·-·-·-·-····-·-··············-·-·-·-·-·---x CARRIE QUINN, Plaintiff, •against• GREENBLATT FAMILY ASSOCIATES LLC, ZERO EIGHTPROPERTIES LLC, MDSL ASSOCIATES, ALAN LEWIS and CHRISTINE. JELALIAN, To commence the statutory time period for appeals as of right (CPLR 5513 [a]), you are · advised to serve a copy of this order, with notice of entry; upon all parties. Index No. EF0l 1360-2018 Defendants. Motion Date: May 17, 2021 ·---··-·---······-·-----·-·-·······-------··-·-·-·-·-·---··-·········X And a Third Party Action ---·------------·-···-··------·-·-··----------------·······-·---·----x The following papers numbered I to 6 were read on Defendants' motion for summary judgment dismissing Plaintiff's complaint: Notice of Motion - Affirmation / Exhibits ....... , ... , .... , . . . . . . . . . . . . . . . . . . . . . . 1-2 Affirmation in Opposition - Affidavit/ Exhibit . , . , .. , ............................. 3.4 .Affirmation in Support (Third•PartyDefendant) , ....... , .... , ....... .. ....... , . . . . . . . 5 Reply Affirmation I Exhibits ........... , , ... , ..............•..... , .. , . . . . • . . . . . . 6 Upon the foregoing papers it is ORDERED that the motion is disposed of as follows: A. Factual Background This is an action to recover for personal injuries arising out of plaintiff Carrie Quinn's slip and fall on ''white" ice at or about 7 ;00 p.m; on February 1, 2017 in the parking lot at office Filed [* 1]in Orange County 06/16/2021 10:30:36 AM $0.00 1 of 5 Pg: 1663 Bk:5133 Index:# EF011360-2018 Clerk: SW FILED: ORANGE COUNTY CLERK 06/16/2021 10:30 AM NYSCEF DOC. NO. 62 INDEX NO. EF011360-2018 RECEIVED NYSCEF: 06/16/2021 premises owned by Defendants at 425 Robinson Avenue, Newburgh, New York. Defendants' assert in conclusory fashion thatthey have demonstratedprimafacle entitlement to summary judgment dismissing Plaintiffs complaint, and repeatedly urge that on the facts of record Plaintiffcannot establish a claim sounding in common law negligence against them. B. Legal Analysis A property owner owes a duty of reasonable care under the circumstances to prevent injuries to third persons from conditions on its property; Basso v. Miller, 40 NY2d 233 (1976). "A property owner will be held liable for a slip-and-fall accident involving ice and snow on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence." Giambruno v. Albrechet, 192 AD3d 671,672 (2d Dept. 2021); Ahmetaj v. Mountainview Condominium, 171 AD3d 683, 684 (2d Dept.2019). However, "[t]he 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." Winegrad v. New York University Medical Center, 64 NY2d 851, 853 ( I 985). A defendant moving for summary judgment bears "the initial burden of establishing prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of its defense, rather than by pointing to gaps in the plaintiffs' evidence.'' Wheaton v. EastEnd Common Associates, LLC, 50 AD3d 675, 677 (2d Dept. 2008). The movant's failure to meet this burden of proof "requires denial of the motion, regardless of the sufficiency of the opposing papers;" Winegrad v. New York University Medical Center, supra. Accordingly, "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 alleged condition 2 [* 2] 2 of 5 FILED: ORANGE COUNTY CLERK 06/16/2021 10:30 AM NYSCEF DOC. NO. 62 INDEX NO. EF011360-2018 RECEIVED NYSCEF: 06/16/2021 nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it." Ahmetaj v..Mountainview Condominium, supra, 171 AD3d at 684; Milorava v. Lord& Taylor Holdings, LLC, 133 AD3d 724, 725 (2d Dept. 2015). See, Giambruno v. Albrechet, supra, 192 AD3d at 672; Murray v. Banco Popular, 132 AD3d 743t 744 (2d Dept. 2015); Grib v. NYCHA, 132 AD3d 725, 726(2d Dept. 2015); Jordan v. Juncalito Abaja Meat Corp., 131 AD3d 1012 (2d Dept. 2015); Paduano v. 686 Forest Avenue, LLC, 119 AD3d 845 (2d Dept 2014); Valentin v. Shoprite of Chester, 105 AD3d 1036 (2d Dept. 2013); Babb v. Marshalls ofMA, Inc. 1 78 AD3d 976 (2d Dept. 201 O); Zeri/li v. Western Beef Retail, Inc., 72 AD3d 681 (2d Dept. 2010). ''A defendant has constructive notice of a dangerous condition when the condition has been visible and apparent long enough for the defendant to have discovered and remedied it." Ahmetaj v. Mountainview Condominium, supra, 171 AD3d at 684. See! Gordon v. American Museum of Natural History, 67 NY2d 836 (1986). The Second Department has consistently held that, "[t]o 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." Ahmetaj v. Mountainview Condominium, supra, ·171 AD3d at 684. See, Milorava v. Lord & Taylor Holdings, LLC, supra, 133 AD3d at 725; Jordan v, Juncalito Abaja Meat Corp.,supra, 131 AD3d at 1012-13; Osbourne v. 80-90 Maiden Lane Del, LLC, supra, 112 AD3d at 899; Marchese v. St. Martha's Roman Catholic Church 106 AD3d 881 (2d Dept. 2013) Goodyear v. Putna,mlNorthern Westchester Bd. ofCoop. Educ. Servs, 86AD3d 551, 552 (2d Dept.2011 ),· Babb v. Marsha/ls ofMA, Inc., SZfpra, 78 AD3d at 976; Birnbaum v, New York Racing Association, Inc., 57 AD3d 598, 598-599 (2d Dept. 2008). As that Court 3 [* 3] 3 of 5 FILED: ORANGE COUNTY CLERK 06/16/2021 10:30 AM NYSCEF DOC. NO. 62 INDEX NO. EF011360-2018 RECEIVED NYSCEF: 06/16/2021 observed in Marchese v. St. Martha's Roman Catholic Church, supra: 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 tripped (see Tsekhanovskaya v. Starrett City, Inc., 90 AD3d 909, 910 ... ; Pryzywalny v. New York City Tr. Auth., 69 AD3d at 599... ). A defendant fails to satisfy its initial burden as to lack of constructive notice when it simply presents evidence of its general cleaning or inspection practices rather,than providing specific evi'dence as to when the area in question was last cleaned or inspected prior to the plaintiffs fall (see Jackson v. Jamaica First Parking, LLC, 91 AD3d at 603 ... ; Pryzywalny v. New York City Tr. Auth., 69 AD3d at 599 ... ; Arzola v. Boston Props. Ltd. Partnership, 63 AD3d at 656 ... ; Feldmus v. Ryan Food Corp., 29 AD3d 940,941 '. .. ). Marchese, 106 AD3d at 88 L The evidence of record shows that: Snow fell on the day before the accident. Defendants' snow removal contractor cleared the parking lot and piled the snow. When Plaintiff arrived for work on the morning of the accident, the parking lot was clear and dry. The day of the accident was sunny and clear. At 7:00 p.m. that evening, Plaintiff slipped in the parking lot on ''white" ice. There is no evidence as to when, if ever, Defendants inspected the parking lot on the date of the accident. Plaintiff's testimony that the ice on which she slipped and fell was "white" evidences the fact that the alleged hazardous condition was visible and apparent. There is no evidence as to when that condition was created, or how long it lasted, on February I, 2017. Under the circumstances, Defendants failed to establish prima facie either that the alleged hazardous condition was not visible and apparent, or that it did not exist for a sufficient length of time prior to the accident to have permitted them in the exercise of reasonable care to discover and remedy it. 4 [* 4] 4 of 5 INDEX NO. EF011360-2018 FILED: ORANGE COUNTY CLERK 06/16/2021 10:30 AM NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 06/16/2021 Consequently, they have not demonstrated entitlement to judgment as a matter oflaw on the issue of constructive notice. While.Plaintiff will be required at trial to adduce evidence affirmatively establishing either that Defendants created the condition or that they had actual or constructive notice thereof, at this juncture summaryjudgment must be denied regardless of the sufficiency of Plaintiffs opposing papers. Wine grad v. New York University Medical Center, supra; Ahmetaj v. MountainviewCondominium, supra, 171 AD3d at 685'. Itis therefore ORDERED, that Defendants' motion for summary judgment is denied. The.foregoing constitutes the decision and order of the Court. Dated: June _l'2_, 2021 Goshen, New York ENTER c~ "-'1-~tt HON. CATHERINE M. BARTLETT,AJ.S.C. HON. C. M. BARnm JUDGE NY STATE COURT OF CLAIMS ACTING SUPREME COURT JUSTICE 5 [* 5] 5 of 5

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