Stone v. KFC of Middletown, Inc.

5 A.D.3d 106, 771 N.Y.S.2d 892, 2004 N.Y. App. Div. LEXIS 2070

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 2004
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered May 19, 2003, which, upon reconsideration, denied defendants’ motion for summary judgment, unanimously affirmed, without costs.

To establish a prima facie case in a slip and fall, plaintiff must show that the defendant either created the dangerous condition or had actual or constructive knowledge of the hazard (Lemonda v Sutton, 268 AD2d 383 [2000]). Despite defendants’ attempt to distinguish between the injured plaintiffs description of where the accident occurred and where his brother had observed the mopping, the evidence allowed for a reasonable inference that the slip and fall occurred where the mopping was observed, and was causally related.

The brother’s affidavit established material issues of fact as to whether defendants had created a dangerous condition by mopping, and whether the floor had remained wet for a period of time sufficient to give them constructive notice of a hazard. Defendants thus failed to meet their burden, as movants, of establishing the absence of notice as a matter of law (Pirrelli v Long Is. R.R., 226 AD2d 166 [1996]). Concur—Buckley, P.J., Mazzarelli, Saxe, Ellerin and Marlow, JJ.