Bergin v. Golshani

• Decision Date: 15 July 2015
• Docket Number: 2013-08946
• Citation: 2015 N.Y. Slip Op. 06103,14 N.Y.S.3d 98,130 A.D.3d 767
• Parties: Patrick BERGIN, et al., appellants-respondents, v. Afshin GOLSHANI, et al., respondents-appellants.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 767

14 N.Y.S.3d 98

2015 N.Y. Slip Op. 06103

Patrick BERGIN, et al., appellants-respondents

v.Afshin GOLSHANI, et al., respondents-appellants.

2013-08946

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

July 15, 2015.

Faber & Troy, Woodbury, N.Y. (Salvatore V. Agosta of counsel), for appellants-respondents.

Purcell & Ingrao, P.C., Mineola, N.Y. (Lynn A. Ingrao and Corey Pugliese of counsel), for respondents-appellants.

PETER B. SKELOS, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and COLLEEN D. DUFFY, JJ.

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Reilly, J.), entered July 22, 2013, as granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of General Municipal Law § 205–e, and the defendants cross-appeal, as limited by their brief, from so much of the same order as denied that branch of their motion which was for summary judgment dismissing the cause of action alleging negligence. Application by the plaintiffs, in effect, to withdraw their appeal on the ground that it has been rendered academic.

ORDERED that the application by the plaintiffs, in effect, to withdraw their appeal is granted, and the appeal by the plaintiffs is deemed withdrawn, without costs or disbursements (see Lincoln v. Crystal Apts. Group, 5 A.D.3d 355, 771 N.Y.S.2d 901 ; see also Matter of Mastrangelo v. State Council of Parks, 16 N.Y.2d 540, 260 N.Y.S.2d 652, 208 N.E.2d 460 ; Matter of Mia M. [Karen M.], 114 A.D.3d 793, 980 N.Y.S.2d 269 ); and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

A defendant landowner moving for summary judgment in a slip-and-fall case has the initial burden of establishing that it did not create the alleged defect or have actual or constructive notice thereof (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 ; Wachovsky v. City of New York, 122 A.D.3d 724, 725, 997 N.Y.S.2d 145 ; Hoffman v. Brown, 109 A.D.3d 791, 971 N.Y.S.2d 130 ; Pryzywalny v. New York City Tr. Auth., 69 A.D.3d 598, 598, 892 N.Y.S.2d 181 ). “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 [the defendants] to discover and remedy it” (Gordon v. American Museum of Natural History, 67 N.Y.2d at 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 ; see McMahon v. Gold, 78 A.D.3d 908, 910 N.Y.S.2d 561 ). “ When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed” (Applegate v. Long Is. Power Auth., 53 A.D.3d 515, 516, 862 N.Y.S.2d 86 ; see Hoffman v. Brown, 109 A.D.3d 791, 971 N.Y.S.2d 130 ; Spindell v. Town of Hempstead,

92 A.D.3d 669, 671, 938 N.Y.S.2d 325 ; McMahon v. Gold, 78 A.D.3d 908, 910 N.Y.S.2d 561 ). In demonstrating that it lacked constructive notice of a visible and apparent defect, “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” slipped and fell (Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598–599, 869 N.Y.S.2d 222 ; see Minor v. 1265 Morrison, LLC, 96 A.D.3d 1024, 1025, 947 N.Y.S.2d 167 ; Goodyear v. Putnam/Northern Westchester Bd. of Coop. Educ. Servs., 86 A.D.3d 551, 552, 927 N.Y.S.2d 373 ; Arslan v. Richmond N. Bellmore Realty, LLC, 79 A.D.3d 950, 913 N.Y.S.2d 328 ; Arzola v. Boston Props. Ltd. Partnership, 63 A.D.3d 655, 880 N.Y.S.2d 352 ).

Here, the deposition testimony of the defendant Afshin Golshani established, prima facie, that the defendants did not create or have actual notice of the allegedly loose piece of slate on the slate stone landing which allegedly caused the plaintiff Patrick Bergin to fall (see Hines v. City of New York, 43 A.D.3d 869, 870, 841 N.Y.S.2d 374 ; Miccio v. Bay Shore Union Free School Dist., 289 A.D.2d 542, 735 N.Y.S.2d 202 ). However, in the absence of any evidence as to when the defendants last inspected the landing before the accident (see Birnbaum...