Mullin v. 100 Church LLC

Nov 18, 2004
Versions:12 A.D.3d 263
784 N.Y.S.2d 545
2004 N.Y. App. Div. LEXIS 13815

Order and judgment (one paper), Supreme Court, New York County (Shirley Werner Kornreich, J.), entered August 6, 2003, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

To establish a prima facie case of negligence in a slip and fall case, a plaintiff must demonstrate that the defendant created the condition that caused the accident or had actual or constructive notice of it (see Uhlich v Canada Dry Bottling Co. of N.Y., 305 AD2d 107, 107 [2003]). Constructive notice arises from a defect that is visible and apparent and has existed for a sufficient length of time before the accident to permit its discovery and remedy by the defendant’s employees (id.). Constructive notice may be demonstrated by evidence of a recurring dangerous condition in the area of the accident that was routinely left unaddressed by the defendant (id.).

A defendant’s motion for summary judgment opposed by the plaintiff must be decided on the version of the facts most favorable to the plaintiff (see Henderson v City of New York, 178 AD2d 129, 130 [1991]).

Here, plaintiff testified that she slipped on a wad of wet, dirty, trampled-on napkins on the floor of the building at 6:45 in the morning on the day after the Martin Luther King holiday. Defendant Zar Realty’s director of security testified that although the building was open on the holiday, the lobby floor was not cleaned that day, and that at the time of plaintiffs accident the next morning, there was debris, such as papers, plates, cups and food wrappings, on the floor. He also testified that the lobby floor is normally cleaned at 8:00 a.m., but that papers blow around the floor “all day long.”

This evidence is sufficient to raise a triable issue of fact as to a recurring condition. Accordingly, defendants’ motion for summary judgment should have been denied. Concur—Nardelli, J.P., Saxe, Sullivan, Ellerin and Sweeny, JJ.