Dolores Parietti v. Wal-Mart Stores, Inc.

This memorandum is uncorrected and subject to revision before publication in the New York Reports. ----------------------------------------------------------------- No. 135 SSM 19

Dolores Parietti et al.,

Appellants, v.

Wal-Mart Stores, Inc. et al.,

Respondents, et al.,

Defendant.

Submitted by Justin B. Perri, for appellants. Submitted by Patricia O'Connor, for respondents.

* * * * * * * * * * * * * * * * * On review of submissions pursuant to section 500.11 of the Rules, order reversed, with costs, and the motion of Wal-Mart Stores, Inc. and Wal-Mart Stores East, L.P. for summary judgment dismissing the complaint, insofar as asserted against them, denied. In a slip-and-fall case, a defendant property owner moving for summary judgment has the burden of making a prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence (see Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 [1984], affd for reason stated below 64 NY2d 670 [1984]). Triable issues of fact exist as to whether Wal-Mart Stores, Inc. and Wal-Mart Stores East, L.P. had notice of a hazardous condition and a reasonable time to correct or warn about its existence. Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.

Decided September 14, 2017