Santos v. 786 Flatbush Food Corp.
Opinion of the Court
The Supreme Court also properly granted that branch of the movants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Key Food Stores Co-Op, Inc., since it established, prima facie, that it did not own the subject supermarket where the incident occurred or exercise control over the daily operation of the subject store (see generally Martinez v Higher Powered Pizza, Inc., 43 AD3d 670 [2007]). In opposition, the plaintiff failed to raise a
The Supreme Court, however, should have denied that branch of the movants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants 786 Flatbush Food Corp. and 786 Flatbush Food Corp., doing business as Key Food (hereinafter together the Food Corp. defendants). The Food Corp. defendants are the tenants operating the supermarket where the accident occurred and, thus, they had the burden of establishing, prima facie, that they did not create the condition that allegedly caused the fall or did not have actual or constructive notice of that condition for a sufficient length of time to remedy it (see Arzu v County of Nassau, 76 AD3d 1036 [2010]; Edwards v Great Atl. & Pac. Tea Co., Inc., 71 AD3d 721 [2010]; Gregg v Key Food Supermarket, 50 AD3d 1093 [2008]). “To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598-599 [2008]). Since the movants failed to offer any evidence as to when the accident site was last inspected or cleaned prior to the plaintiffs fall, merely submitting evidence as to the Food Corp. defendants’ general cleaning practice, they failed to establish, prima facie, that those defendants did not have constructive notice of the alleged hazardous condition (see Schiano v Mijul, Inc., 79 AD3d 726 [2010]; Farrell v Waldbaum’s, Inc., 73 AD3d 846 [2010]; Ames v Waldbaum, Inc., 34 AD3d 607 [2006]). As the movants failed to meet their initial burden with respect to the Food Corp. defendants, it is not necessary to review the sufficiency of the plaintiff’s opposition papers. Skelos, J.P., Chambers, Sgroi and Miller, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.