SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

313 

CA 12-01548 

PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ. 

 

ANDREW NAVETTA, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

ONONDAGA GALLERIES LIMITED LIABILITY COMPANY 

AND FLAUM MANAGEMENT COMPANY, INC., 

DEFENDANTS-APPELLANTS. 

 

THORN GERSHON TYMANN AND BONANNI, LLP, ALBANY (AMANDA KURYLUK OF

COUNSEL), FOR DEFENDANTS-APPELLANTS. 

STANLEY LAW OFFICES, LLP, SYRACUSE (KEITH YOUNG OF COUNSEL), FOR

PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Onondaga County

(Anthony J. Paris, J.), entered November 17, 2011. The order denied

the motion of defendants for summary judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting the motion in part and

dismissing the amended complaint to the extent that the amended

complaint, as amplified by the bill of particulars and supplemental

bill of particulars, alleges that defendants had actual notice of the

allegedly dangerous condition and as modified the order is affirmed

without costs. 

Memorandum: Plaintiff commenced this action seeking damages for

injuries he sustained when he slipped and fell on a wet floor in a

building owned and operated by defendants. Defendants moved for

summary judgment dismissing the amended complaint, and Supreme Court

denied the motion. Defendants appeal. 

“ ‘In seeking summary judgment dismissing the [amended]

complaint, defendant[s] had the initial burden of establishing that

[they] did not create the alleged dangerous condition and did not have

actual or constructive notice of it’ ” (King v Sam’s E., Inc., 81 AD3d

1414, 1414-1415). We note at the outset that plaintiff did not assert

that defendants created the allegedly dangerous condition, i.e., the

wet floor on which plaintiff fell, and thus the only issue before the

court was whether defendants had actual or constructive notice thereof

(see generally Wesolek v Jumping Cow Enters., Inc., 51 AD3d 1376,

1377). Consequently, the issue whether defendants created the

relevant condition was not before the court, and the court therefore

erred in determining in its bench decision that there is a question of
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CA 12-01548 

fact on that issue.

Regarding the issue of actual notice, we agree with defendants

that the court erred in denying the motion with respect to the claim

that defendants had actual notice of the allegedly dangerous

condition, and we therefore modify the order accordingly. To

establish that they did not have actual notice of the allegedly

dangerous condition, defendants were required to show that they did

not receive any complaints concerning the area where plaintiff fell

and were unaware of any water or other substance in that location

prior to plaintiff’s accident (see Costanzo v Woman’s Christian Assn.

of Jamestown, 92 AD3d 1256, 1257; Quinn v Holiday Health & Fitness

Ctrs. of N.Y., Inc., 15 AD3d 857, 857). Here, defendants submitted

the affidavit of the leasing director and general manager of the

building in which plaintiff fell (general manager), wherein he averred

that no leak or spill was reported to him on the morning of the

accident, and that neither he nor any other employees at the building

observed such a leak or spill during an inspection of the premises

that morning. Defendants therefore met their initial burden on the

issue of actual notice, and plaintiff failed to raise an issue of fact

in opposition (see generally Zuckerman v City of New York, 49 NY2d

557, 562).

Contrary to defendants’ contention, however, we conclude that the

court properly denied the motion with respect to the claim that

defendants had constructive notice of the allegedly dangerous

condition. Defendants failed to meet their initial burden on that

issue inasmuch as their submissions raise issues of fact whether the

wet floor “was visible and apparent and existed for a sufficient

length of time prior to plaintiff’s fall to permit [defendants] to

discover and remedy it” (King, 81 AD3d at 1415; see Russo v YMCA of

Greater Buffalo, 12 AD3d 1089, 1089-1090, lv dismissed 5 NY3d 746; see

generally Gordon v American Museum of Natural History, 67 NY2d 836,

837; Zuckerman, 49 NY2d at 562). The fact that plaintiff did not

notice water on the floor before he fell does not establish

defendants’ entitlement to judgment as a matter of law on the issue

whether that condition was visible and apparent (see Gwitt v Denny’s,

Inc., 92 AD3d 1231, 1232; see also King, 81 AD3d at 1415; Russo, 12

AD3d at 1089). Indeed, defendants raised a question of fact with

respect to that issue by submitting plaintiff’s deposition testimony

in which he stated that he observed water on the floor after he fell,

as well as the general manager’s deposition testimony in which he

stated that, after plaintiff’s fall, he observed a puddle of water

that was 10 inches in diameter on the floor in proximity to the area

where plaintiff fell (see Gwitt, 92 AD3d at 1232). Moreover, inasmuch

as defendants failed to submit evidence with respect to the specific

time when the area where plaintiff fell was last inspected, there is

an issue of fact whether the defect in question existed for a

sufficient length of time prior to plaintiff’s fall to permit

defendants to discover and remedy it (cf. Quinn, 15 AD3d at 857-858).

Even assuming, arguendo, that defendants established as a matter

of law that they did not have constructive notice of the particular
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CA 12-01548 

condition at issue here, we conclude that, based on defendants’ own

submissions, “an inference could be drawn that defendant[s] had actual

knowledge of a recurrent dangerous condition and therefore could be

charged with constructive notice of each specific reoccurrence of the

condition” (Chrisler v Spencer, 31 AD3d 1124, 1125; see Anderson v

Great E. Mall, L.P., 74 AD3d 1760, 1761; see generally Zuckerman, 49

NY2d at 562). Although defendants submitted the affidavit of the

general manager in which he averred that there were no recurrent leaks

around the time of plaintiff’s fall because the roof in the area where

plaintiff fell had been replaced before the accident, that statement

conflicts with the deposition testimony provided by the general

manager that he did not remember when the roof was replaced. “[T]he

conflict between [that] deposition testimony and . . . affidavit

raises a question of credibility to be resolved at trial” (Gwitt, 92

AD3d at 1232). Inasmuch as the burden never shifted to plaintiff to

raise a triable issue of fact regarding the issue of constructive

notice, we do not address defendants’ remaining contentions concerning

the sufficiency of plaintiff’s opposing papers (see Dengler v Posnick,

83 AD3d 1385, 1386-1387).

Entered: May 3, 2013 Frances E. Cafarell

Clerk of the Court