        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1375
CA 13-00784
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND WHALEN, JJ.


TAUSHIEYA KEENE, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

THE MARKETPLACE AND WILMORITE MANAGEMENT
GROUP, LLC, DEFENDANTS-RESPONDENTS.


PARISI & BELLAVIA, LLP, ROCHESTER (TIMOTHY C. BELLAVIA OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

WEBSTER SZANYI LLP, BUFFALO (JEREMY A. COLBY OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Thomas
A. Stander, J.), entered February 13, 2013 in a personal injury
action. The order denied the motion of plaintiff for partial summary
judgment on the issue of liability and granted the motion of
defendants for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of the motion of
defendants The Marketplace and Wilmorite Management Group, LLC with
respect to the first cause of action and reinstating the complaint to
that extent and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when a mirror fell from a wall in vacant retail
space in the Marketplace Mall, where plaintiff was working at a blood
drive. Defendant The Marketplace owned the property, and defendant
Wilmorite Management Group, LLC managed the property (collectively,
defendants). The retail space was previously occupied by a Bath &
Body Works store (BBW), and mirrors had been installed along the walls
in 1993 by a contractor employed by BBW. The retail space was
“debranded” by BBW and turned over to The Marketplace in June 2006,
and plaintiff was injured in August 2006. Plaintiff appeals from an
order denying her motion seeking partial summary judgment on the issue
of liability and granting defendants’ motion seeking summary judgment
dismissing the complaint.

     As a preliminary matter, we conclude that Supreme Court properly
denied plaintiff’s motion seeking partial summary judgment on the
issue of liability inasmuch as she failed to establish her entitlement
to judgment as a matter of law (see generally Zuckerman v City of New
York, 49 NY2d 557, 562). We further conclude that the court properly
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                                                         CA 13-00784

granted that part of defendant’s motion seeking to dismiss the second
cause of action alleging res ipsa loquitur inasmuch as res ipsa
loquitur is an evidentiary doctrine, rather than a cause of action
(see Abbott v Page Airways, 23 NY2d 502, 512; Herbst v Lakewood Shores
Condominium Assn., 112 AD3d 1373, 1374). To the extent that the
second cause of action, as amplified by the bill of particulars, may
be read to allege common-law negligence, we conclude that the court
properly determined that defendants met their burden on their motion
by establishing that they did not have exclusive control of the
mirror, i.e., one of the necessary conditions for the applicability of
the doctrine of res ipsa loquitur, and that plaintiff failed to raise
an issue of fact (cf. Herbst, 112 AD3d at 1374; see generally
Zuckerman, 49 NY2d at 562).

     We agree with plaintiff, however, that the court erred in
granting that part of defendants’ motion with respect to the first
cause of action, which alleges, inter alia, that defendants had
constructive notice of the dangerous condition of the unsecured
mirror. We therefore modify the order accordingly. It is well
established that “[a] landowner is liable for a dangerous or defective
condition on [its] property when the landowner ‘created the condition
or had actual or constructive notice of it and a reasonable time
within which to remedy it’ ” (Anderson v Weinberg, 70 AD3d 1438,
1439). “To constitute constructive notice, a defect must be visible
and apparent and it must exist for a sufficient length of time prior
to the accident to permit defendant’s employees to discover and remedy
it” (Gordon v American Museum of Natural History, 67 NY2d 836, 837).
Here, defendants established that when the mirrors were installed in
the retail space in 1993 they were secured with a substance called
“mirror mastic,” and that shelves and brackets were installed in front
of the mirrors to prevent them from falling. Defendants’ agents
walked through the retail space after BBW vacated it and again prior
to the blood drive and, although the shelves and brackets had been
removed, they did not observe that any mirrors were not securely
attached to the wall. We therefore conclude that defendants met their
burden of establishing that they lacked constructive notice of a
dangerous condition. We further conclude, however, that plaintiff
raised an issue of fact in opposition to defendants’ motion.
Plaintiff submitted evidence establishing that the mirror that fell
and struck her had duct tape across the top of it, and she also
submitted the deposition testimony of her coworker, who testified that
she had observed two other mirrors that were “leaning” and had folded
masking tape affixed on the back. Viewing that evidence in the light
most favorable to plaintiff (see Esposito v Wright, 28 AD3d 1142,
1143), we conclude that there is an issue of fact whether defendants
had constructive notice of the dangerous condition presented by the
unsecured mirror (see generally Zuckerman, 49 NY2d at 562).




Entered:   February 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
