Malloy v. Montefiore Med. Ctr.

• Decision Date: 20 May 2020
• Docket Number: 2018–13819,Index No. 50430/17
• Citation: 122 N.Y.S.3d 532 (Mem),183 A.D.3d 811
• Parties: Peggy MALLOY, Appellant, v. MONTEFIORE MEDICAL CENTER, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 811

122 N.Y.S.3d 532 (Mem)

Peggy MALLOY, Appellant,

v.MONTEFIORE MEDICAL CENTER, et al., Respondents.

2018–13819

Index No. 50430/17

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

Argued—December 5, 2019

May 20, 2020

Krentsel & Guzman, LLP, New York, N.Y. (Steven E. Krentsel, Julie T. Mark, and Marcia Raicus of counsel), for appellant.

Heidell, Pittoni, Murphy & Bach, LLP, White Plains, N.Y. (Daniel S. Ratner and Daryl Paxson of counsel), for respondents.

MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Montefiore Mount Vernon Hospital is denied.

The plaintiff commenced this action against the defendant Montefiore Mount Vernon Hospital (hereinafter Mount Vernon Hospital) to recover damages for personal injuries she alleges she incurred when she tripped and fell on a broken curb near that defendant's emergency department entrance in Mount Vernon. The plaintiff also named as a defendant another hospital, Montefiore Medical Center (hereinafter Montefiore), which is located in the Bronx. The defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the defendants' motion, determining, inter alia, that (1) Montefiore is a separate entity from Mount Vernon Hospital and is unconnected to the alleged accident, and (2) the defendants showed that Mount Vernon Hospital lacked constructive notice of the alleged dangerous condition. The plaintiff appeals from so much of the order as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against Mount Vernon Hospital.

Contrary to the determination of the Supreme Court, the defendants failed to show, prima facie, that Mount Vernon Hospital did not have constructive notice of the alleged dangerous condition (see Williams v. Island Trees Union Free Sch. Dist. , 177 A.D.3d 936, 938, 114 N.Y.S.3d 118 ). A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time prior to the accident to afford the defendant a reasonable opportunity to discover and remedy it (see id. ). To meet its burden on the issue of constructive notice, a defendant is required to offer evidence as to when the accident site was last inspected relative to the time when the plaintiff fell (see Radosta v. Schechter , 171 A.D.3d 1112, 1113, 97 N.Y.S.3d 664 ; Quinones v. Starret City, Inc. , 163 A.D.3d 1020, 1021, 81 N.Y.S.3d 184 ).

Here, the defendants failed to meet this burden. In support of their motion, among other things, they proffered the affidavit of the director of engineering of Mount Vernon Hospital who averred that there were no maintenance or complaint records for approximately three years preceding the...