Mullin v. 100 Church LLC

Appellate Division of the Supreme Court of New York

Mullin v. 100 Church LLC

12 A.D.3d 263, 784 N.Y.S.2d 545, 2004 N.Y. App. Div. LEXIS 13815

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 18, 2004

StatusPublished

Cited by10 cases

This text of 12 A.D.3d 263 (Mullin v. 100 Church LLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mullin v. 100 Church LLC, 12 A.D.3d 263, 784 N.Y.S.2d 545, 2004 N.Y. App. Div. LEXIS 13815 (N.Y. Ct. App. 2004).

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Opinion

[264]*264Order and judgment (one paper), Supreme Court, New York County (Shirley Werner Kornreich, J.), entered August 6, 2003, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

To establish a prima facie case of negligence in a slip and fall case, a plaintiff must demonstrate that the defendant created the condition that caused the accident or had actual or constructive notice of it (see Uhlich v Canada Dry Bottling Co. of N.Y., 305 AD2d 107, 107 [2003]). Constructive notice arises from a defect that is visible and apparent and has existed for a sufficient length of time before the accident to permit its discovery and remedy by the defendant’s employees (id.). Constructive notice may be demonstrated by evidence of a recurring dangerous condition in the area of the accident that was routinely left unaddressed by the defendant (id.).

A defendant’s motion for summary judgment opposed by the plaintiff must be decided on the version of the facts most favorable to the plaintiff (see Henderson v City of New York, 178 AD2d 129, 130 [1991]).

Here, plaintiff testified that she slipped on a wad of wet, dirty, trampled-on napkins on the floor of the building at 6:45 in the morning on the day after the Martin Luther King holiday. Defendant Zar Realty’s director of security testified that although the building was open on the holiday, the lobby floor was not cleaned that day, and that at the time of plaintiffs accident the next morning, there was debris, such as papers, plates, cups and food wrappings, on the floor. He also testified that the lobby floor is normally cleaned at 8:00 a.m., but that papers blow around the floor “all day long.”

This evidence is sufficient to raise a triable issue of fact as to a recurring condition. Accordingly, defendants’ motion for summary judgment should have been denied. Concur—Nardelli, J.P., Saxe, Sullivan, Ellerin and Sweeny, JJ.

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[264]*264Order and judgment (one paper), Supreme Court, New York County (Shirley Werner Kornreich, J.), entered August 6, 2003, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

To establish a prima facie case of negligence in a slip and fall case, a plaintiff must demonstrate that the defendant created the condition that caused the accident or had actual or constructive notice of it (see Uhlich v Canada Dry Bottling Co. of N.Y., 305 AD2d 107, 107 [2003]). Constructive notice arises from a defect that is visible and apparent and has existed for a sufficient length of time before the accident to permit its discovery and remedy by the defendant’s employees (id.). Constructive notice may be demonstrated by evidence of a recurring dangerous condition in the area of the accident that was routinely left unaddressed by the defendant (id.).

A defendant’s motion for summary judgment opposed by the plaintiff must be decided on the version of the facts most favorable to the plaintiff (see Henderson v City of New York, 178 AD2d 129, 130 [1991]).

Here, plaintiff testified that she slipped on a wad of wet, dirty, trampled-on napkins on the floor of the building at 6:45 in the morning on the day after the Martin Luther King holiday. Defendant Zar Realty’s director of security testified that although the building was open on the holiday, the lobby floor was not cleaned that day, and that at the time of plaintiffs accident the next morning, there was debris, such as papers, plates, cups and food wrappings, on the floor. He also testified that the lobby floor is normally cleaned at 8:00 a.m., but that papers blow around the floor “all day long.”

This evidence is sufficient to raise a triable issue of fact as to a recurring condition. Accordingly, defendants’ motion for summary judgment should have been denied. Concur—Nardelli, J.P., Saxe, Sullivan, Ellerin and Sweeny, JJ.

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Bluebook (online)

12 A.D.3d 263, 784 N.Y.S.2d 545, 2004 N.Y. App. Div. LEXIS 13815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mullin-v-100-church-llc-nyappdiv-2004.

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