SUPERMARKET DENIED SUMMARY JUDGMENT IN SLIP-AND-FALL ACCIDENT; IT FAILED TO MEET ITS LACK OF NOTICE BURDEN AS MOVANT

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Santos v. 786 Flatbush Food Corp.

Date: Nov. 9, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Bronx and Queens; Queens accident attorney)

Comment: Supermarket slip-and-fall cases almost always turn on the question of "notice" against the store. Here the accident victim sued the store and the building owner (landlord) after slipping on water. Landlord gets out on a successful summary judgment motion, because a landlord "out of possession" can't be held liable (responsible) for spills and such.

The store's summary judgment motion was denied and the case against it goes forward because it failed to show that it didn't know about the spill or create the spill ("actual notice") and/or shouldn't have known about it ("constructive notice").

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RELATED POSTS:

SLIP-AND-FALL ACCIDENT IN LAUNDRY ROOM DISMISSED: NO "NOTICE" TO BUILDING OWNER & MANAGER; NO "DUTY OF CARE" OR "NEGLIGENT SUPERVISION" BY PARENTS (Posted By Queens accident attorney Gary E. Rosenberg on Dec 15, 2011)

NO "NOTICE" OF RAISED RUG ON FLOOR; CASE DISMISSED ON DEFENSE SUMMARY JUDGMENT MOTION (Posted By Queens accident attorney Gary E. Rosenberg on Nov 5, 2011)

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated April 23, 2010, which granted the motion of the defendants 786 Flatbush Food Corp., Key Food Stores Co-Op, Inc., 786 Flatbush Food Corp., doing business as Key Food, Joseph Kazlow, and Save-A-Dollar Discount, a New York General Partnership, for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants 786 Flatbush Food Corp. and 786 Flatbush Food Corp., doing business as Key Food, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff allegedly was injured when she slipped and fell on water in the aisle of a supermarket. An out‑of‑possession landlord is not liable for injuries sustained on the premises unless a duty to maintain the premises in reasonably safe condition is "imposed by statute or assumed by contract or a course of conduct" (Alnashmi v. Certified Analytical Group, Inc., ___ A.D.3d ___, 929 N.Y.S.2d 620, 627; see Rivera v. Nelson Realty, LLC, 7 N.Y.3d 530, 534, 825 N.Y.S.2d 422, 858 N.E.2d 1127; Chapman v. Silber, 97 N.Y.2d 9, 21, 734 N.Y.S.2d 541, 760 N.E.2d 329). Here, where the complaint sounds in common‑law negligence and does not allege the violation of a statute, the defendants 786 Flatbush Food Corp., Key Food Stores Co-Op, Inc., 786 Flatbush Food Corp., doing business as Key Food, Joseph Kazlow, and Save-A-Dollar Discount, a New York General Partnership (hereinafter collectively the movants), established, prima facie, that Save-A-Dollar Discount, a New York General Partnership, was an out‑of‑possession landlord which was not bound by contract or course of conduct to make nonstructural repairs (see Alnashmi v. Certified Analytical Group, Inc., ___ A.D.3d ___, 929 N.Y.S.2d 620, 624). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572). Accordingly, the Supreme Court properly granted those branches of the movants' motion which were for summary judgment dismissing the complaint insofar as asserted against Save-A-Dollar Discount, a New York General Partnership, and its member, Joseph Kazlow.

The Supreme Court also properly granted that branch of the movants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Key Food Stores Co-Op, Inc., since it established, prima facie, that it did not own the subject supermarket where the incident occurred or exercise control over the daily operation of the subject store (see generally Martinez v. Higher Powered Pizza, Inc., 43 A.D.3d 670, 841 N.Y.S.2d 526). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).

The Supreme Court, however, should have denied that branch of the movants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants 786 Flatbush Food Corp. and 786 Flatbush Food Corp., doing business as Key Food (hereinafter together the Food Corp. defendants). The Food Corp. defendants are the tenants operating the supermarket where the accident occurred and, thus, they had the burden of establishing, prima facie, that they did not create the condition that allegedly caused the fall or did not have actual or constructive notice of that condition for a sufficient length of time to remedy it (see Arzu v. County of Nassau, 76 A.D.3d 1036, 907 N.Y.S.2d 878; Edwards v. Great Atl. & Pac. Tea Co., Inc., 71 A.D.3d 721, 895 N.Y.S.2d 723; Gregg v. Key Food Supermarket, 50 A.D.3d 1093, 858 N.Y.S.2d 220). "To meet its initial burden on the issue of lack of constructive notice, the 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 A.D.3d 598, 598-599, 869 N.Y.S.2d 222). Since the movants failed to offer any evidence as to when the accident site was last inspected or cleaned prior to the plaintiff's fall, merely submitting evidence as to the Food Corp. defendants' general cleaning practice, they failed to establish, prima facie, that those defendants did not have constructive notice of the alleged hazardous condition (see Schiano v. Mijul, Inc., 79 A.D.3d 726, 912 N.Y.S.2d 134; Farrell v. Waldbaum's, Inc., 73 A.D.3d 846, 900 N.Y.S.2d 453; Ames v. Waldbaum, Inc., 34 A.D.3d 607, 823 N.Y.S.2d 697). As the movants failed to meet their initial burden with respect to the Food Corp. defendants, it is not necessary to review the sufficiency of the plaintiff's opposition papers.

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