Stasiak v. Sears, Roebuck and Co.
| Decision Date | 19 March 2001 |
| Citation | 722 N.Y.S.2d 251,281 AD2d 533 |
| Parties | (A.D. 2 Dept. 2001) Mary Stasiak, respondent, v Sears, Roebuck and Co., appellant. 2000-02829 : SECOND JUDICIAL DEPARTMENT |
| Court | New York Supreme Court — Appellate Division |
Lynch Rowin, LLP, New York, N.Y. (Patrick J. Comerford of counsel), for appellant.
Mitchell Klafter, P.C., Queens Village, N.Y., for respondent.
DAVID S. RITTER, J.P., SONDRA MILLER, DANIEL F. LUCIANO, NANCY E. SMITH, JJ.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Garson, J.), dated January 5, 2000, which denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The plaintiff slipped and fell in a puddle of white latex paint which had spilled on the sidewalk outside the exit door of the defendant's store. Upon being made aware of the spill, the defendant's employees acted in a reasonable manner by placing several warning cones at the site of the spill, giving oral warnings to the public of its existence and beginning the process of obtaining mops and buckets to clean it. It is uncontroverted that the plaintiff slipped and fell not more than 90 seconds after the spill occurred and during the time in which the defendant's employees had begun the remedial efforts.
In a slip and fall case, a plaintiff must demonstrate that the defendant created the dangerous condition which caused the accident or had actual or constructive notice of that condition and failed to remedy it within a reasonable time (see, Gordon v American Museum of Natural History, 67 N.Y.2d 836; Birthwright v Mid-City Sec. Inc., 268 A.D.2d 401; see also, Lupi v Home Creators, Inc., 265 A.D.2d 653; see generally, LoSquadro v R. C. Archdiocese of Brooklyn, 253 A.D.2d 856). The defendant demonstrated that it did not create the hazard and, although it had actual notice of the spill, the defendant's employees did not have a reasonable time to remedy it. Here, in opposition to the defendant's prima facie case for summary judgment, the plaintiff failed to raise a triable issue of fact as to whether the defendant was afforded a reasonable time to remedy the hazard. Additionally, there was no duty on the part of the defendant to warn the plaintiff of the hazard because it constituted an open and obvious condition which the plaintiff could easily have observed by employing the reasonable use of her senses (see, Paulo v Great Atl. & Pac. Tea Co., 233 A.D.2d 380). Therefore, the defendant is entitled to summary judgment dismissing the complaint.
LUCIANO, J., dissents and votes to affirm the order with the following memorandum:
I disagree with the majority that the defendant sustained its burden of proving prima facie as a matter of law that it was not afforded a reasonable time to remedy the hazardous condition of which it had actual notice. As the majority notes, it is well settled that in a slip and fall case such as this, the plaintiff must demonstrate that the defendant either created the dangerous condition or had actual or constructive notice of that condition and failed to remedy it within a reasonable time (see, Mercer v City of New York, 88 N.Y.2d 955; Lewis v Metro. Trans. Auth, 99 A.D.2d 246, 249, affd 64 N.Y.2d 670). Where, as in this case, the defendant has conceded that it had actual notice of the dangerous condition, the question is whether the defendant took remedial action within a reasonable time. Although the majority has concluded that the evidence was uncontroverted as to when the plaintiff fell after the paint spill occurred, it is my opinion that the record presented by the defendant in support of its motion for summary judgment is replete with contradictory evidence on the issue. Thus, the defendant did not sustain its initial burden of proving that there are no triable issues of fact regarding the time within which the defendant began its remedial efforts. I conclude, therefore, that the Supreme Court did not err in denying summary judgment.
In support of its motion, the defendant presented the deposition testimony of Peter Alborano, the lead associate of the Sears Hardware Center lawn and garden department at the Newton, New Jersey location. He testified that at 10:20 A.M. or 10:25 A.M. on July 5, 1997, a gentleman walked up to his station at the service counter near the entrance doors to the store, and reported that he had spilled paint on the sidewalk just outside the entrance....
To continue reading
Request your trial