

Graham v YMCA of Greater N.Y. (2016 NY Slip Op 01777)





Graham v YMCA of Greater N.Y.


2016 NY Slip Op 01777


Decided on March 15, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 15, 2016

Tom, J.P., Acosta, Renwick, Moskowitz, JJ.


304129/11 509 508

[*1]Shelarv Graham, Plaintiff-Appellant, —
vYMCA of Greater New York, et al., Defendants-Respondents.


Steven Siegel, PC, Kew Gardens (Nathan V. Bishop of counsel), for appellant.
Gordon & Silber, P.C., New York (Andrew B. Kaufman of counsel), for respondents.

Judgment, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered October 31, 2014, dismissing the complaint in its entirety pursuant to an order, same court and Justice, entered October 2, 2014, which granted the motion of defendant YMCA of Greater New York, also sued herein as YMCA of Greater New York-Bronx, for summary judgment, unanimously modified, on the law, to reinstate the complaint to the extent it alleges that the YMCA had constructive notice of the alleged dangerous condition, and otherwise affirmed, without costs. Appeal from the aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Plaintiff alleges that she slipped and fell on a puddle of water that was on the floor of a YMCA owned and maintained by defendants. The YMCA made a prima facie showing that it did not cause or create the alleged condition, because plaintiff testified that she did not see the YMCA's employees working at the accident location prior to the incident and did not know where the water came from (Briggs v Pick Quick Foods, Inc., 103 AD3d 526, 526 [1st Dept 2013]). The YMCA also made a prima facie showing that it lacked actual notice of the alleged condition, because the building engineer for the premises averred that he oversaw the maintenance of the premises and did not receive complaints about water on the floor prior to the accident (see Gomez v J.C. Penny Corp., Inc., 113 AD3d 571, 571 [1st Dept 2014]). However, the YMCA failed to make a prima facie showing that it lacked constructive notice of the alleged defect. The building engineer failed to aver as to when the YMCA's employees last cleaned or inspected the accident location before the incident occurred (see Seleznyov v New York City Tr. [*2]Auth., 113 AD3d 497, 498 [1st Dept 2014]).
Given the foregoing determination, there is no need to consider the sufficiency of plaintiff's opposing papers (id.).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 15, 2016
CLERK


