Smith v. Costco Wholesale Corporation

• Decision Date: 24 April 2008
• Docket Number: 3431.
• Citation: 50 A.D.3d 499,856 N.Y.S.2d 573,2008 NY Slip Op 03682
• Parties: MARLENE SMITH, Respondent, v. COSTCO WHOLESALE CORPORATION, Appellant.
• Court: New York Supreme Court — Appellate Division

50 A.D.3d 499

856 N.Y.S.2d 573

2008 NY Slip Op 03682

MARLENE SMITH, Respondent, v. COSTCO WHOLESALE CORPORATION, Appellant.

3431.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided April 24, 2008.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered July 27, 2007, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

It is a well-established principle of law that a landowner is under a duty to maintain its property in a reasonably safe condition under the existing circumstances, which include the likelihood of injury to a third party, the potential that such an injury would be of a serious nature, and the burden of avoiding the risk (Basso v Miller, 40 NY2d 233, 241 [1976]; Zuk v Great Atl. & Pac. Tea Co., Inc., 21 AD3d 275 [2005]). In order to subject a property owner to liability for a hazardous condition on its premises, a plaintiff must demonstrate that the owner created, or had actual or constructive notice of the dangerous condition which precipitated the injury (Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]; Alexander v New York City Tr., 34 AD3d 312, 313 [2006]). In the case of actual or constructive notice, plaintiff must also show that the owner had a sufficient opportunity, with the exercise of reasonable care, to remedy the situation (Aquino v Kuczinski, Vila & Assoc., P.C., 39 AD3d 216, 219 [2007]; Morales v Shelter Express Corp., 26 AD3d 420 [2006]).

A defendant who moves for summary judgment in a slip-and-fall action has the initial burden of making a prima facie demonstration that it neither created the hazardous condition, nor had actual or constructive notice of its existence (Manning v Americold Logistics, LLC, 33 AD3d 427 [2006]; Mitchell v City of New York, 29 AD3d 372, 374 [2006]). Once a defendant establishes prima facie entitlement to such relief as a matter of law, the burden shifts to plaintiff to raise a triable issue of fact as to the creation of the defect or notice thereof (Kesselman v Lever House Rest., 29 AD3d 302, 303-304 [2006]; Bosman v Reckson FS Ltd. Partnership, 15 AD3d 517 [2005]).

In the matter before us, the deposition testimony of defendant's senior administrative manager and the documentary evidence submitted by defendant demonstrate that the bathrooms were cleaned and monitored regularly by defendant's personnel, that no problems were noted during the inspection prior to plaintiff's fall, and that inspections conducted after the incident indicated no foreign substance or liquid on the bathroom floor no bucket and mop were present in the bathroom, and no plumbing problems existed. As a result, we find that defendant shouldered its burden of making a prima facie showing that it neither created the hazardous condition, nor had notice of it (see Edwards v Port Auth. of N.Y. & N.J., 48 AD3d 405 [2008]; Resto v 798 Realty, LLC, 28 AD3d 388 [2006]).

In contrast, plaintiff's deposition testimony provides nothing more than mere speculation as to the cause of the accident and offers nothing to indicate that defendant created or had notice of the hazard. Indeed, plaintiff testified that s...