Preview
FILED: NEW YORK COUNTY CLERK 03/28/2016 05:31 PM INDEX NO. 151722/2014
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 03/28/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
MANUEL ALICEA
Plaintiff, Index No. 151722/14
-against-
1350 BROADWAY LLC, and NEWMARK & COMPANY
REAL ESTATE, INC. d/b/a NEWMARK GRUBB
KNIGHT FRANK,
Defendants
X
MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT
SULLIVAN PAPAIN BLOCK
McGRATH & CANNAVO P.C.
Attorneys for Plaintiff
120 Broadway
New York, New York 10271
(212) 732-9000
OF COUNSEL:
MARK A. APOSTOLOS, ESQ.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
MANUEL ALICEA
Plaintiff, Index No. 151722/14
-against-
1350 BROADWAY LLC, and NEWMARK & COMPANY
REAL ESTATE, INC. d/b/a NEWMARK GRUBB
KNIGHT FRANK,
Defendants
X
MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT
PRELIMINARY STATEMENT
This memorandum, together with the affirmation of Mark A. Apostolos, Esq.,
("Apostolos Affirmation") is submitted in opposition to the motion by defendants, 1350
BROADWAY LLC, and NEWMARK & COMPANY REAL ESTATE, INC. d/b/a NEWMARK
GRUBB KNIGHT FRANK, for summary judgment on the issue of liability.
As more thoroughly set forth in the Apostolos Affirmation, this is an action for personal
injuries arising out of an accident where in which Mr. Alicea was caused to slip and fall inside the
defendants' premises, 1350 Broadway, New York, New York on February 2, 2013, at
approximately 11:45 P.M.
This motion must be denied in its entirety because: (1) defendant's motion is untimely and
they have failed to make a showing of good cause for the substantial delay; (2) defendants have
failed to make a prima fade showing that they did not cause and create the dangerous condition or
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that they did not have actual or constructive notice of the dangerous condition; (3) plaintiff has
established that there are, at minimum, questions of fact as to whether the defendants were on
constructive notice of the dangerous condition that caused the plaintiff's accident.
DISCUSSION
DEFENDANTS HAVE FAILED TO SHOW GOOD CAUSE AS TO WHY
THIS COURT SHOULD ENTERTAIN ITS LATE MOTION
The Court of Appeals in Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261 (2004),
held that pursuant to CPLR § 3212(a), "motions for summary judgment must be brought within 120
days of the filing of the note of issue, or the time established by the Court, and that where a motion
is made outside of either of those time frames, the movant must show good cause for the delay, or
the late motion will not be addressed." Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 83,
978 N.Y.S.2d 13 (1st Dept. 2013); see also First Union Auto Finance, Inc., v. Donat, 16 A.D.3d
372, 791 N.Y.S.2d 596 (2nd Dept. 2005) (holding that the Supreme Court erred in considering the
untimely motion and cross motion on the merits when both motions were made beyond the 60 days
prescribed for summary judgment by that Court's specific rules).
In Miceli v. State Farm Mutual Automotible Insurance Company, 3 N.Y.3d 725, 786
N.Y.S.2d 379 (2007), the Court of Appeals again reiterated its decision in Brill, supra, and also held
that an argument that the motion for summary judgment was meritorious was insufficient as a
matter of law to constitute "good cause". The Court further held:
"As we made clear in Brill, and underscore here, statutory time frames like
court-ordered time frames (see Kihl v. Pfeffer, 94 N.Y.2d 118, 700 N.Y.S.2d
87, 722 N.E.2d 55 (1999)) — are not options, they are requirements, to be
taken seriously by the parties. Too many pages of the Reports, and hours of the
courts, are taken up with deadlines that are simply ignored."
Miceli, 3 N.Y.3d at 726-27.
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In Kershaw, supra, the defendants moved for summary judgment' after the Court-prescribed
deadline, which was extended up to 82 days (see footnote 2 within the decision) after the filing of
the note of issue. The Supreme Court Judge, Hon. Alice Schlesinger, denied the untimely cross
motion holding that the defendants failed to show good cause for the delay for the untimely motion.
The First Department, Appellate Division, affirmed the decision citing Brill.
In this case, defendants have offered no excuse whatsoever as to why their motion is
untimely. Because they have failed to show "good cause", as required by the law, for their sixty
(60) day delay in making this motion, this motion must be denied.
DEFENDANTS HAVE FAILED TO MAKE A PRIMA FACIE SHOWING
ENTITLING THEM TO SUMMARY JUDGMENT
The First Department in following the Court of Appeals decisions of Winegrad v.
New York (Mil). Med. Ctr., 64 N.Y.2d 851, 487 N.Y. S .2d 316 (1985), and Cox v. Kingsboro
Medical Group, 88 N.Y.2d 904, 906, 646 N.Y.S.2d 659 (1996), has repeatedly upheld the basic
principal in motions for summary judgment that the movant has the initial burden of making a
prima facie showing that it is not liable. See Seleznyov v. New York City Transit Authority, 113
A.D.3d 497, 498, 979 N.Y.S.2d 44 (1st Dept., 2014); Perez v. New York City Housing Authority,
114 A.D.3d 586, 586, 981 N.Y.S.2d 59 (1st Dept., 2014); and Rodriguez v. Bronx Zoo
Restaurant, Inc., 110 A.D.3d 412, 413, 972 N.Y.S.2d 31 (1st Dept. 2013).
Defendants, the "proponent of a summary judgment motion must make a prima facie
showing of entitlement to judgment as a matter of law, tendering sufficient evidence to
eliminate any material issues of fact from the case...Failure to make such showing requires
denial of the motion, regardless of the sufficiency of the opposing papers..." Winegrad, 64
The motion for summary judgment was incorrectly labeled a cross-motion. However, as the Appellate Division
points out within the decision, a cross-motion is a motion by any party against the party who made the motion.
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N.Y.2d at 853); see also, Seleznyov v. New York City Transit Authority, Supra at p. 498; Perez v.
New York City Housing Authority, Supra at p. 586; and Rodriguez, 110 A.D.3d at 413.
"A defendant who moves for summary judgment in a slip-and-fall case has the initial
burden of making a prima facie showing that it neither created the hazardous condition nor had
actual or constructive notice of its existence for a sufficient length of time to discover and
remedy it." Mahoney v. AMC Entertainment, Inc., 103 A.D.3d 855, 959 N.Y.S.2d 752 (2" Dept.
2013).
It is well settled law that in a slip and fall case for a defendant "No meet its prima facie
burden with respect to the issue of the lack of constructive notice, a defendant must offer some
evidence as to when the area in question was last cleaned or inspected relative to the time of
the accident." Sartori v. JP Morgan Chase Bank, 127 A.D.3d 1157, 7 N.Y.S.3d 548 (2nd Dept.
2015); see also Garcia v. 1265 Morrison LLC, 122 A.D.3d 512, 997 N.Y.S.2d 62 (1st Dept.
2014) (defendant failed to meet its prima facie burden because there was no evidence submitted
by the defendant to show whether the scheduled cleaning took place); Yuk Ping Cheng Chan v.
Young T Lee & Son Realty Coip., 110 A.D.3d 637, 973 N.Y.S.2d 642 (1st Dept. 2013) (in a slip
and fall case it was held that the defendant "failed to meet its prima facie burden to eliminate the
issue of constructive notice since it submitted no evidence establishing when the sidewalk was
last cleaned or inspected prior to plaintiffs fall"); Sabalza v. Salgado, 85 A.D.3d 436, 437-38,
924 N.Y.S.2d 373 (1st Dept. 2011) ("A defendant cannot satisfy its burden merely by pointing
out gaps in the plaintiffs case, and instead must submit evidence concerning when the area was
last cleaned and inspected prior to the accident").
In Sabalza, supra, a legal malpractice case centered around a slip and fall accident that
happened at a C-Town supermarket, the Appellate Division, First Department, denied
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defendant's motion for summary judgment on the issue of liability holding that the defendant
failed to meet his initial burden of establishing a lack of constructive notice because the
defendant did "not submit any evidence, documentary, testimonial or otherwise, concerning C—
Town's maintenance procedures, whether or not there were any complaints concerning the
conditions, or when C—Town last inspected the area." 85 A.D.3d at 438.
In the present case, defendants have presented no evidence to support their motion other
than plaintiff's transcript. They have failed to make any showing, through any form of evidence,
that they did not create the dangerous condition or that they were not on notice of the dangerous
condition prior to the accident. They have not submitted any evidence as to whether the building
was ever inspected, cleaned, or if any floor mats were ever placed down prior to plaintiff's
accident. They have failed to present any evidence showing that any decision was made to place
the floor mats down in anticipation for the snow that was forecasted to occur on the date of the
accident.
Furthermore, defendants have likewise presented no evidence as to whether they
followed their own practice and procedure of placing the floor mats down during the winter
months, which has been said to include February 2, 2013, in front of the 6th Avenue entrance,
and as such, defendants have failed to meet the requisite burden. Milorava v. Lord & Taylor
Holdings, LLC, 133 A.D.3d 724, 725-26, 20 N.Y.S.3d 398 (2nd Dept. 2015) ("Mere reference to
general cleaning practices, with no evidence regarding any specific cleaning or inspection of the
area in question, is insufficient to establish a lack of constructive notice"); Garcia, 122 A.D.3d
512. In fact, the only evidence in this case is to the contrary — neither of defendants' witnesses
knew whether the floor mats, that were supposed to be placed in the area in which Mr. Alicea
fell, were placed on the ground at the time of Mr. Alicea's fall.
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THERE ARE QUESTIONS OF FACT AS TO WHETHER THE
DEFENDANTS HAD CONSTRUCTIVE NOTICE OF THE
REOCCURRING SLIPPERY CONDITION THAT CAUSED PLAINTIFF'S
ACCIDENT
Property owners, and those to whom they delegate their responsibility, have a duty to
maintain their property in a reasonably safe condition under the circumstances. Peralta v.
Henriquez, 100 N.Y.2d 139, 144-145, 760 N.Y.S.2d 741 (2003). "Whenever the general public
is invited into stores, office buildings and other places of public assembly, the owner is charged
with the duty of providing the public with a reasonably safe premises, including a safe means of
ingress and egress. In general, his duty is to use reasonable care at all times and in all
circumstances." Gallagher v. St. Raymond's Catholic Church, 21 N.Y.2d 554, 557, 289
N.Y.S.2d 401 (1968) (emphasis added).
"A defendant may be held liable for an injury proximately caused by a dangerous
condition created by water, snow, or ice tracked into a building if it either created the hazardous
condition, or had actual or constructive notice of the condition and a reasonable time to
undertake remedial action." Mentasi v. Eckerd Drugs, 61 A.D.3d 650, 651, 877 N.Y.S.2d 149
(2nd Dept. 2009).
It has been long well settled law within the State of New York that a defendant that
had actual knowledge of a reoccurring dangerous condition may be charged with
constructive notice of a specific reoccurrence of that same condition. Anderson v. Great
Eastern Mall, L.P., 74 A.D.3d 1760, 1761, 902 N.Y.S.2d 283 (4th Dept. 2010) ("`A. defendant
who has actual knowledge of an ongoing and recurring dangerous condition can be charged with
constructive notice of each specific reoccurrence of the condition') (citation omitted); David v.
New York City Housing Authority, 284 A.D.2d 169, 171, 727 N.Y.S.2d 404 (1st Dept. 2001) ("it
is not necessary that plaintiff prove that the defendant had actual knowledge of the accumulation
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of rain water on the date of her accident, but merely that the condition was reoccurring over a
period of time with each successive rainfall, thereby putting the defendant on constructive notice
of the condition"); Weisenthal v. Pickman, 153 A.D.2d 849, 545 N.Y.S.2d 369, 371 (2" Dept.
1989) ("When a landowner has actual knowledge of the tendency of a particular dangerous
condition to reoccur, he is charged with constructive notice of each specific reoccurrence of that
condition"); see also Santiago v. JP Morgan Chase and Company, 96 A.D.3d 642, 947 N.Y.S.2d
103 (1st Dept. 2012); Rodriguez v. Franklin Development Co., Inc., 43 A.D.3d 1134, 842
N.Y.S.2d 82 (2" Dept. 2007) (stating that actual knowledge of the tendency of a particular
dangerous condition to reoccur is sufficient to charge a defendant with constructive notice of a
specific reoccurrence of that condition).
It is further well settled law that a defendants' failure to place floor mats down in
anticipation of tracked in water that creates a slippery condition sufficiently constitutes a
dangerous condition as a matter of law. Jordan v. Juncalito Abajo Meat Corp., 131 A.D.3d
1012, 16 N.Y.S.2d 278 (2" Dept. 2015); DiVertri v. ABM Janitorial Service, Inc., 119 A.D.3d
486, 990 N.Y.S.2d 496 (1st Dept. 2014) (holding that a jury could reasonably conclude that the
defendants were negligent by failing to exercise reasonable care in placing the runners in the
lobby when the sidewalk was known to be wet); Santiago, 96 A.D.3d 642; Mentasi v. Eckard
Drugs, 61 A.D.3d 650, 877 N.Y.S.2d 149 (2" Dept. 2009); Friedman v. Gannett Satellite
Information Network, Inc., 302 A.D.2d 491, 755 N.Y.S.2d 412 (2" Dept. 2003).
In Santiago, supra, a case factually similar to the present case, plaintiff slipped and fell
on defendants' lobby's tiled floor in the ATM vestibule. Plaintiff argued that defendants failure
to place floor mats in that location caused the accident. At the time that the accident occurred,
there was snow and slush outside, and the evidence showed that plaintiff had slipped on snow
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and ice that he had carried in from outside on the bottom of his shoes. Testimony from the
defendant's employee elicited that the defendants were aware that the floor became slippery
without the mats if there were wet weather conditions outside. The defendants further explained
that it was the bank's practice to place the floor mats down in the ATM vestibule if the weather
required it.
In Santiago the First Department held that "there are triable issues of fact as to whether
an unremedied recurring dangerous condition caused plaintiff's injury" because the defendants
had knowledge that a slippery condition would be present in the area where the plaintiff fell
every time there was inclement weather. The First Department held this despite the fact that
there was proof presented that the defendants had shown that they exercised some degree of care
by placing floor mats down in the entrance area.
Here, other than the fact that there is no proof that any floor mats were placed down in
this case, Santiago is analogous. Mr. Meirama admitted that floor mats must be placed down
whenever there is snow or wetness outside, or snow or wetness is anticipated, because the
building's floor becomes slippery with wet shoes. Mr. Meirama was aware that a dangerous
condition would reoccur if he failed to place the floor mats down when it was wet out or in
anticipation of wet weather, when his building staff would not be present. As such, there are
sufficient facts within this case to allow a jury to determine if the defendants were on
constructive notice of the reoccurring dangerous condition
Simply put, plaintiffs have set forth sufficient proof to show that the defendants were on
notice that a dangerous condition would reoccur if the defendants failed to place the floor mats
down when snow was falling, or anticipated to fall, and the defendants may, therefore, be
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charged with constructive notice of the dangerous and slippery condition of the floor on February
2, 2013. Weisenthal, 153 A.D.2d 849.
PLAINTIFF WILL BE ABLE TO SHOW THAT THE DEFENDANTS
WERE NEGLIGENT BY FAILING TO ADHERE TO THEIR OWN
POLICIES AND PROCEDURES
"When proof of an accepted practice is accompanied by evidence that the defendant
conformed to it, this may establish due care (citation omitted) and, contrariwise, when proof of a
customary practice is coupled with a showing that it was ignored and that this departure was a
proximate cause of the accident, it may serve to establish liability". Trimarco v. nen, 56 N.Y.2d
98, 105-6, 451 N.Y.S.2d 52 (1982); see also AG Captial Funding Partners, L.P. v. State Street
Bank and Trust Co., 5 N.Y.3d 582, 808 N.Y.S.2d 573 (2005) (holding that a showing of common
practice is admissible to establish a duty of care).
Defendants have not established that they adhered to their own practice and policies of
placing the mats in the area that the plaintiff fell throughout the winter months, as well as the
practice of placing the mats down in anticipation of a precipitation over the weekend. Plaintiff
has established, through the admissible evidence cited within these papers, that no mats were
placed down at the time of the accident and that the defendants, therefore, failed to adhere to
their own policies and procedures.
As the law dictates above, the jury will be able to consider this failure in determining the
standard of care that the defendants were under at the time of the subject accident.
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CONCLUSION
For all of the foregoing reasons, defendants' motion must be dismissed in its entirety.
Dated: New York, New York
March 28, 2016
OS
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Preview
FILED: NEW YORK COUNTY CLERK 03/28/2016 05:31 PM INDEX NO. 151722/2014 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 03/28/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X MANUEL ALICEA Plaintiff, Index No. 151722/14 -against- 1350 BROADWAY LLC, and NEWMARK & COMPANY REAL ESTATE, INC. d/b/a NEWMARK GRUBB KNIGHT FRANK, Defendants X MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SULLIVAN PAPAIN BLOCK McGRATH & CANNAVO P.C. Attorneys for Plaintiff 120 Broadway New York, New York 10271 (212) 732-9000 OF COUNSEL: MARK A. APOSTOLOS, ESQ. 1 of 11 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X MANUEL ALICEA Plaintiff, Index No. 151722/14 -against- 1350 BROADWAY LLC, and NEWMARK & COMPANY REAL ESTATE, INC. d/b/a NEWMARK GRUBB KNIGHT FRANK, Defendants X MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT PRELIMINARY STATEMENT This memorandum, together with the affirmation of Mark A. Apostolos, Esq., ("Apostolos Affirmation") is submitted in opposition to the motion by defendants, 1350 BROADWAY LLC, and NEWMARK & COMPANY REAL ESTATE, INC. d/b/a NEWMARK GRUBB KNIGHT FRANK, for summary judgment on the issue of liability. As more thoroughly set forth in the Apostolos Affirmation, this is an action for personal injuries arising out of an accident where in which Mr. Alicea was caused to slip and fall inside the defendants' premises, 1350 Broadway, New York, New York on February 2, 2013, at approximately 11:45 P.M. This motion must be denied in its entirety because: (1) defendant's motion is untimely and they have failed to make a showing of good cause for the substantial delay; (2) defendants have failed to make a prima fade showing that they did not cause and create the dangerous condition or 2 2 of 11 that they did not have actual or constructive notice of the dangerous condition; (3) plaintiff has established that there are, at minimum, questions of fact as to whether the defendants were on constructive notice of the dangerous condition that caused the plaintiff's accident. DISCUSSION DEFENDANTS HAVE FAILED TO SHOW GOOD CAUSE AS TO WHY THIS COURT SHOULD ENTERTAIN ITS LATE MOTION The Court of Appeals in Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261 (2004), held that pursuant to CPLR § 3212(a), "motions for summary judgment must be brought within 120 days of the filing of the note of issue, or the time established by the Court, and that where a motion is made outside of either of those time frames, the movant must show good cause for the delay, or the late motion will not be addressed." Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 83, 978 N.Y.S.2d 13 (1st Dept. 2013); see also First Union Auto Finance, Inc., v. Donat, 16 A.D.3d 372, 791 N.Y.S.2d 596 (2nd Dept. 2005) (holding that the Supreme Court erred in considering the untimely motion and cross motion on the merits when both motions were made beyond the 60 days prescribed for summary judgment by that Court's specific rules). In Miceli v. State Farm Mutual Automotible Insurance Company, 3 N.Y.3d 725, 786 N.Y.S.2d 379 (2007), the Court of Appeals again reiterated its decision in Brill, supra, and also held that an argument that the motion for summary judgment was meritorious was insufficient as a matter of law to constitute "good cause". The Court further held: "As we made clear in Brill, and underscore here, statutory time frames like court-ordered time frames (see Kihl v. Pfeffer, 94 N.Y.2d 118, 700 N.Y.S.2d 87, 722 N.E.2d 55 (1999)) — are not options, they are requirements, to be taken seriously by the parties. Too many pages of the Reports, and hours of the courts, are taken up with deadlines that are simply ignored." Miceli, 3 N.Y.3d at 726-27. 3 3 of 11 In Kershaw, supra, the defendants moved for summary judgment' after the Court-prescribed deadline, which was extended up to 82 days (see footnote 2 within the decision) after the filing of the note of issue. The Supreme Court Judge, Hon. Alice Schlesinger, denied the untimely cross motion holding that the defendants failed to show good cause for the delay for the untimely motion. The First Department, Appellate Division, affirmed the decision citing Brill. In this case, defendants have offered no excuse whatsoever as to why their motion is untimely. Because they have failed to show "good cause", as required by the law, for their sixty (60) day delay in making this motion, this motion must be denied. DEFENDANTS HAVE FAILED TO MAKE A PRIMA FACIE SHOWING ENTITLING THEM TO SUMMARY JUDGMENT The First Department in following the Court of Appeals decisions of Winegrad v. New York (Mil). Med. Ctr., 64 N.Y.2d 851, 487 N.Y. S .2d 316 (1985), and Cox v. Kingsboro Medical Group, 88 N.Y.2d 904, 906, 646 N.Y.S.2d 659 (1996), has repeatedly upheld the basic principal in motions for summary judgment that the movant has the initial burden of making a prima facie showing that it is not liable. See Seleznyov v. New York City Transit Authority, 113 A.D.3d 497, 498, 979 N.Y.S.2d 44 (1st Dept., 2014); Perez v. New York City Housing Authority, 114 A.D.3d 586, 586, 981 N.Y.S.2d 59 (1st Dept., 2014); and Rodriguez v. Bronx Zoo Restaurant, Inc., 110 A.D.3d 412, 413, 972 N.Y.S.2d 31 (1st Dept. 2013). Defendants, the "proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case...Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers..." Winegrad, 64 The motion for summary judgment was incorrectly labeled a cross-motion. However, as the Appellate Division points out within the decision, a cross-motion is a motion by any party against the party who made the motion. 4 4 of 11 N.Y.2d at 853); see also, Seleznyov v. New York City Transit Authority, Supra at p. 498; Perez v. New York City Housing Authority, Supra at p. 586; and Rodriguez, 110 A.D.3d at 413. "A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it." Mahoney v. AMC Entertainment, Inc., 103 A.D.3d 855, 959 N.Y.S.2d 752 (2" Dept. 2013). It is well settled law that in a slip and fall case for a defendant "No meet its prima facie burden with respect to the issue of the lack of constructive notice, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of the accident." Sartori v. JP Morgan Chase Bank, 127 A.D.3d 1157, 7 N.Y.S.3d 548 (2nd Dept. 2015); see also Garcia v. 1265 Morrison LLC, 122 A.D.3d 512, 997 N.Y.S.2d 62 (1st Dept. 2014) (defendant failed to meet its prima facie burden because there was no evidence submitted by the defendant to show whether the scheduled cleaning took place); Yuk Ping Cheng Chan v. Young T Lee & Son Realty Coip., 110 A.D.3d 637, 973 N.Y.S.2d 642 (1st Dept. 2013) (in a slip and fall case it was held that the defendant "failed to meet its prima facie burden to eliminate the issue of constructive notice since it submitted no evidence establishing when the sidewalk was last cleaned or inspected prior to plaintiffs fall"); Sabalza v. Salgado, 85 A.D.3d 436, 437-38, 924 N.Y.S.2d 373 (1st Dept. 2011) ("A defendant cannot satisfy its burden merely by pointing out gaps in the plaintiffs case, and instead must submit evidence concerning when the area was last cleaned and inspected prior to the accident"). In Sabalza, supra, a legal malpractice case centered around a slip and fall accident that happened at a C-Town supermarket, the Appellate Division, First Department, denied 5 5 of 11 defendant's motion for summary judgment on the issue of liability holding that the defendant failed to meet his initial burden of establishing a lack of constructive notice because the defendant did "not submit any evidence, documentary, testimonial or otherwise, concerning C— Town's maintenance procedures, whether or not there were any complaints concerning the conditions, or when C—Town last inspected the area." 85 A.D.3d at 438. In the present case, defendants have presented no evidence to support their motion other than plaintiff's transcript. They have failed to make any showing, through any form of evidence, that they did not create the dangerous condition or that they were not on notice of the dangerous condition prior to the accident. They have not submitted any evidence as to whether the building was ever inspected, cleaned, or if any floor mats were ever placed down prior to plaintiff's accident. They have failed to present any evidence showing that any decision was made to place the floor mats down in anticipation for the snow that was forecasted to occur on the date of the accident. Furthermore, defendants have likewise presented no evidence as to whether they followed their own practice and procedure of placing the floor mats down during the winter months, which has been said to include February 2, 2013, in front of the 6th Avenue entrance, and as such, defendants have failed to meet the requisite burden. Milorava v. Lord & Taylor Holdings, LLC, 133 A.D.3d 724, 725-26, 20 N.Y.S.3d 398 (2nd Dept. 2015) ("Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice"); Garcia, 122 A.D.3d 512. In fact, the only evidence in this case is to the contrary — neither of defendants' witnesses knew whether the floor mats, that were supposed to be placed in the area in which Mr. Alicea fell, were placed on the ground at the time of Mr. Alicea's fall. 6 6 of 11 THERE ARE QUESTIONS OF FACT AS TO WHETHER THE DEFENDANTS HAD CONSTRUCTIVE NOTICE OF THE REOCCURRING SLIPPERY CONDITION THAT CAUSED PLAINTIFF'S ACCIDENT Property owners, and those to whom they delegate their responsibility, have a duty to maintain their property in a reasonably safe condition under the circumstances. Peralta v. Henriquez, 100 N.Y.2d 139, 144-145, 760 N.Y.S.2d 741 (2003). "Whenever the general public is invited into stores, office buildings and other places of public assembly, the owner is charged with the duty of providing the public with a reasonably safe premises, including a safe means of ingress and egress. In general, his duty is to use reasonable care at all times and in all circumstances." Gallagher v. St. Raymond's Catholic Church, 21 N.Y.2d 554, 557, 289 N.Y.S.2d 401 (1968) (emphasis added). "A defendant may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial action." Mentasi v. Eckerd Drugs, 61 A.D.3d 650, 651, 877 N.Y.S.2d 149 (2nd Dept. 2009). It has been long well settled law within the State of New York that a defendant that had actual knowledge of a reoccurring dangerous condition may be charged with constructive notice of a specific reoccurrence of that same condition. Anderson v. Great Eastern Mall, L.P., 74 A.D.3d 1760, 1761, 902 N.Y.S.2d 283 (4th Dept. 2010) ("`A. defendant who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of the condition') (citation omitted); David v. New York City Housing Authority, 284 A.D.2d 169, 171, 727 N.Y.S.2d 404 (1st Dept. 2001) ("it is not necessary that plaintiff prove that the defendant had actual knowledge of the accumulation 7 7 of 11 of rain water on the date of her accident, but merely that the condition was reoccurring over a period of time with each successive rainfall, thereby putting the defendant on constructive notice of the condition"); Weisenthal v. Pickman, 153 A.D.2d 849, 545 N.Y.S.2d 369, 371 (2" Dept. 1989) ("When a landowner has actual knowledge of the tendency of a particular dangerous condition to reoccur, he is charged with constructive notice of each specific reoccurrence of that condition"); see also Santiago v. JP Morgan Chase and Company, 96 A.D.3d 642, 947 N.Y.S.2d 103 (1st Dept. 2012); Rodriguez v. Franklin Development Co., Inc., 43 A.D.3d 1134, 842 N.Y.S.2d 82 (2" Dept. 2007) (stating that actual knowledge of the tendency of a particular dangerous condition to reoccur is sufficient to charge a defendant with constructive notice of a specific reoccurrence of that condition). It is further well settled law that a defendants' failure to place floor mats down in anticipation of tracked in water that creates a slippery condition sufficiently constitutes a dangerous condition as a matter of law. Jordan v. Juncalito Abajo Meat Corp., 131 A.D.3d 1012, 16 N.Y.S.2d 278 (2" Dept. 2015); DiVertri v. ABM Janitorial Service, Inc., 119 A.D.3d 486, 990 N.Y.S.2d 496 (1st Dept. 2014) (holding that a jury could reasonably conclude that the defendants were negligent by failing to exercise reasonable care in placing the runners in the lobby when the sidewalk was known to be wet); Santiago, 96 A.D.3d 642; Mentasi v. Eckard Drugs, 61 A.D.3d 650, 877 N.Y.S.2d 149 (2" Dept. 2009); Friedman v. Gannett Satellite Information Network, Inc., 302 A.D.2d 491, 755 N.Y.S.2d 412 (2" Dept. 2003). In Santiago, supra, a case factually similar to the present case, plaintiff slipped and fell on defendants' lobby's tiled floor in the ATM vestibule. Plaintiff argued that defendants failure to place floor mats in that location caused the accident. At the time that the accident occurred, there was snow and slush outside, and the evidence showed that plaintiff had slipped on snow 8 8 of 11 and ice that he had carried in from outside on the bottom of his shoes. Testimony from the defendant's employee elicited that the defendants were aware that the floor became slippery without the mats if there were wet weather conditions outside. The defendants further explained that it was the bank's practice to place the floor mats down in the ATM vestibule if the weather required it. In Santiago the First Department held that "there are triable issues of fact as to whether an unremedied recurring dangerous condition caused plaintiff's injury" because the defendants had knowledge that a slippery condition would be present in the area where the plaintiff fell every time there was inclement weather. The First Department held this despite the fact that there was proof presented that the defendants had shown that they exercised some degree of care by placing floor mats down in the entrance area. Here, other than the fact that there is no proof that any floor mats were placed down in this case, Santiago is analogous. Mr. Meirama admitted that floor mats must be placed down whenever there is snow or wetness outside, or snow or wetness is anticipated, because the building's floor becomes slippery with wet shoes. Mr. Meirama was aware that a dangerous condition would reoccur if he failed to place the floor mats down when it was wet out or in anticipation of wet weather, when his building staff would not be present. As such, there are sufficient facts within this case to allow a jury to determine if the defendants were on constructive notice of the reoccurring dangerous condition Simply put, plaintiffs have set forth sufficient proof to show that the defendants were on notice that a dangerous condition would reoccur if the defendants failed to place the floor mats down when snow was falling, or anticipated to fall, and the defendants may, therefore, be 9 9 of 11 charged with constructive notice of the dangerous and slippery condition of the floor on February 2, 2013. Weisenthal, 153 A.D.2d 849. PLAINTIFF WILL BE ABLE TO SHOW THAT THE DEFENDANTS WERE NEGLIGENT BY FAILING TO ADHERE TO THEIR OWN POLICIES AND PROCEDURES "When proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care (citation omitted) and, contrariwise, when proof of a customary practice is coupled with a showing that it was ignored and that this departure was a proximate cause of the accident, it may serve to establish liability". Trimarco v. nen, 56 N.Y.2d 98, 105-6, 451 N.Y.S.2d 52 (1982); see also AG Captial Funding Partners, L.P. v. State Street Bank and Trust Co., 5 N.Y.3d 582, 808 N.Y.S.2d 573 (2005) (holding that a showing of common practice is admissible to establish a duty of care). Defendants have not established that they adhered to their own practice and policies of placing the mats in the area that the plaintiff fell throughout the winter months, as well as the practice of placing the mats down in anticipation of a precipitation over the weekend. Plaintiff has established, through the admissible evidence cited within these papers, that no mats were placed down at the time of the accident and that the defendants, therefore, failed to adhere to their own policies and procedures. As the law dictates above, the jury will be able to consider this failure in determining the standard of care that the defendants were under at the time of the subject accident. 10 10 of 11 CONCLUSION For all of the foregoing reasons, defendants' motion must be dismissed in its entirety. Dated: New York, New York March 28, 2016 OS 11 11 of 11