Zimmer v. Cnty. of Suffolk

• Decision Date: 20 January 2021
• Docket Number: Index No. 11805/12,2018–13376
• Citation: 190 A.D.3d 898,139 N.Y.S.3d 615
• Parties: Theresa ZIMMER, appellant, v. COUNTY OF SUFFOLK, defendant, Suffolk County Industrial Development Agency, et al., respondents.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 898

139 N.Y.S.3d 615

Theresa ZIMMER, appellant,

v. COUNTY OF SUFFOLK, defendant,Suffolk County Industrial Development Agency, et al., respondents.

2018–13376

Index No. 11805/12

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

Submitted—October 9, 2020

January 20, 2021

Dell & Dean, PLLC, Garden City, N.Y. (Christopher R. Dean of counsel), for appellant.

Cariello Law Firm, Uniondale, N.Y. (Edgar Matos of counsel), for respondents.

WILLIAM F. MASTRO, A.P.J., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph C. Pastoressa, J.), dated September 26, 2018. The order, insofar as appealed from, granted that branch of the motion of the defendants Suffolk County Industrial Development Agency and RXR Realty, LLC, which was for summary judgment dismissing the complaint insofar as asserted against the defendant RXR Realty, LLC, and denied the plaintiff's cross motion for leave to amend her bill of particulars.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On January 20, 2011, shortly after 6:00 p.m., the plaintiff allegedly was injured when she slipped and fell on a patch of ice in a parking lot. The plaintiff commenced this action to recover damages for personal injuries against, among others, the owner of the premises, Suffolk County Industrial Development Agency (hereinafter SCIDA), and the tenant of the premises, RXR Realty, LLC (hereinafter RXR), which was responsible for maintaining the premises. Thereafter, SCIDA and RXR (hereinafter together the defendants) moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them. In an order dated September 26, 2018, the Supreme Court, among other things, granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against RXR. The plaintiff appeals.

A party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the allegedly dangerous condition that caused the accident or had actual or constructive notice of its existence (see Coelho v. S & A Neocronon, Inc., 178 A.D.3d 662, 663, 115 N.Y.S.3d 91 ; Rong Wen Wu v. Arniotes, 149 A.D.3d 786, 787, 50 N.Y.S.3d 563 ). "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 to afford the defendant a reasonable opportunity to discover and remedy it" ( Velasquez v. Pro Park, Inc., 173 A.D.3d 1246, 1247, 104 N.Y.S.3d 674 ; see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 ).

Here, the defendants established RXR's prima facie entitlement to judgment as a matter of law by submitting, inter alia, the deposition testimony of the plaintiff and a maintenance worker for RXR. The plaintiff testified that she worked at the premises five days a week, typically from 9:00 a.m. to 5:00 p.m., and that she either came to the premises by car pool or driving...