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

155
CA 14-01131
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND VALENTINO, JJ.


MADELINE RIVERA, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TOPS MARKETS, LLC, DEFENDANT-APPELLANT.


DIXON & HAMILTON, LLP, GETZVILLE (DENNIS P. HAMILTON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Timothy
J. Drury, J.), entered March 4, 2014 in a personal injury action. The
order denied defendant’s motion for summary judgment dismissing the
complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when she allegedly slipped and fell on water on
the floor of a grocery store owned by defendant. Supreme Court
properly denied defendant’s motion for summary judgment dismissing the
complaint. “As the proponent of the motion, defendant had the initial
burden of establishing that it did not create the dangerous condition
that caused plaintiff to fall and did not have actual or constructive
notice thereof” (Quinn v Holiday Health & Fitness Ctrs. of N.Y., Inc.,
15 AD3d 857, 857).

     We conclude that defendant failed to establish as a matter of law
that it did not create the dangerous condition or have actual notice
thereof. Indeed, its submissions do not address those theories of
liability. As noted by the court, the store manager “was never asked
[n]or did she state if any employee had seen the water prior to the
[p]laintiff’s fall.” She also was not asked, nor did she state,
whether defendant had received any prior complaints concerning that
dangerous condition.

     We further conclude that defendant failed to establish as a
matter of law that it did not have constructive notice of the
dangerous condition. “To constitute constructive notice, a defect [or
dangerous condition] must be visible and apparent and it must exist
for a sufficient length of time prior to the accident to permit [a
                                 -2-                           155
                                                         CA 14-01131

defendant] to discover and remedy it” (Gordon v American Museum of
Natural History, 67 NY2d 836, 837). In deposition testimony submitted
by defendant, plaintiff stated that she observed the puddles of water
only after she had fallen. Contrary to defendant’s contention, “[t]he
fact that plaintiff did not notice water on the floor before [s]he
fell does not establish defendant[’s] entitlement to judgment as a
matter of law on the issue whether that condition was visible and
apparent” (Navetta v Onondaga Galleries LLC, 106 AD3d 1468, 1469-1470;
see King v Sam’s E., Inc., 81 AD3d 1414, 1415). In any event,
defendant submitted the deposition testimony of a store manager, who
admitted that she observed water on the floor in proximity to the area
where plaintiff fell (see Navetta, 106 AD3d at 1470; King, 81 AD3d at
1415; cf. Quinn, 15 AD3d at 857-858). While that employee also stated
that a person walking through that area would have a difficult time
seeing the water on the floor, that testimony, at most, raises a
triable issue of fact whether the puddles were visible and apparent
(see King, 81 AD3d at 1415; cf. Quinn, 15 AD3d at 858). Defendant did
not submit any evidence concerning either regular recurring
inspections of the area or the specific condition of that area “in the
hours prior to . . . the time of the accident” (Austin v CDGA Natl.
Bank Trust & Canandaigua Natl. Corp., 114 AD3d 1298, 1300; see King,
81 AD3d at 1415; cf. Smith v May Dept. Store, Co., 270 AD2d 870, 870).
Although defendant correctly contends that in moving for summary
judgment it is not required to submit proof of recent inspections
where such inspections would not have disclosed the dangerous
condition or defect (see Quinn, 15 AD3d at 857-858), defendant’s own
submissions “raise issues of fact whether the wet floor ‘was visible
and apparent and existed for a sufficient length of time prior to
plaintiff’s fall to permit [defendant] to discover and remedy it’ ”
(Navetta, 106 AD3d at 1469). We thus conclude that defendant
“ ‘failed to establish as a matter of law that the condition was not
visible and apparent or that it had not existed for a sufficient
length of time before plaintiff’s accident to permit employees of
[defendant] to discover and remedy it’ ” (Rivers v May Dept. Stores
Co., 11 AD3d 963, 964). The failure of defendant to meet its initial
burden requires denial of the motion, “regardless of the sufficiency
of the opposing papers” (Alvarez v Prospect Hosp., 68 NY2d 320, 324;
see Ayotte v Gervasio, 81 NY2d 1062, 1063).




Entered:   February 13, 2015                   Frances E. Cafarell
                                               Clerk of the Court
