Executor v. D'agostino Supermarkets Inc.

• Decision Date: 25 October 2011
• Citation: 931 N.Y.S.2d 293,88 A.D.3d 584,2011 N.Y. Slip Op. 07483
• Parties: Nina Lewis STRYKER as Executor, etc., Plaintiff–Appellant,v.D'AGOSTINO SUPERMARKETS INC., et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 584

931 N.Y.S.2d 293

2011 N.Y. Slip Op. 07483

Nina Lewis STRYKER as Executor, etc., Plaintiff–Appellant,

v.D'AGOSTINO SUPERMARKETS INC., et al., Defendants–Respondents.

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

Oct. 25, 2011.

Pollack, Pollack, Isaac & De Cicco, New York (Jillian Rosen of counsel), for appellant.Torino & Bernstein, P.C., Mineola (Charles R. Strugatz of counsel), for respondents.TOM, J.P., DeGRASSE, FREEDMAN, ROMÁN, JJ.

Order, Supreme Court, New York County (Carol Edmead, J.), entered June 16, 2010, which granted defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to deny summary judgment as to defendant D'Agostino Supermarkets Inc., and otherwise affirmed, without costs.

In this personal injury action, plaintiff Mirjana Lewis alleges that she tripped and fell on a raised corner of a mat located in a vestibule of a D'Agostino's supermarket. To establish their entitlement to summary judgment, defendants were required to demonstrate as a matter of law that they maintained the subject property in a reasonably safe condition and neither created the alleged dangerous condition nor had actual or constructive notice thereof ( see Ross v. Betty G. Reader Revocable Trust, 86 A.D.3d 419, 421, 927 N.Y.S.2d 49 [2011] ).

The record shows that a question of fact exists as to constructive notice due to evidence that D'Agostino was “aware of an ongoing and recurring unsafe condition which regularly went unaddressed” ( Mazerbo v. Murphy, 52 A.D.3d 1064, 1066, 860 N.Y.S.2d 289 [2008], lv. dismissed 11 N.Y.3d 770, 866 N.Y.S.2d 597, 896 N.E.2d 81 [2008] [internal quotation marks omitted] ). Contrary to D'Agostino's contention, the supermarket patron's deposition testimony that she made multiple complaints to the supermarket's manager prior to the accident was sufficient to establish that D'Agostino had notice of the hazardous condition that caused plaintiff to trip and fall ( see Simoni v. 2095 Cruger Assoc., 285 A.D.2d 431, 432, 729 N.Y.S.2d 10 [2001] ).

However, summary judgment was properly granted in favor of the owner of the premises, New 56–79 IG Associates, L.P., and its managing agent, BLDG Management Co., Inc. In light of the owner's status as an out-of-possession landlord, plaintiff was required, but failed, to show “that the purported hazard constituted a structural or design defect that violated a specific statutory provision” ( Boateng v. Four...