Black v. Kohl's Department Stores, Inc.

Mercure, J.P.

(dissenting). I respectfully dissent. The majority adopts a rule that evidence of merchandise dropped frequently on the floor of a department store by customers — a common condition that cannot be prevented in advance — may establish constructive notice of a dangerous condition despite proof that the aisle in which the plaintiff fell was inspected shortly before the incident. In my view, such evidence is insufficient — as a matter of law — to create a question of fact on the issue of whether the recurring nature of the situation may be deemed to *962have put defendant on constructive notice of each specific reoccurrence of the condition. Moreover, a rule that such evidence can obviate the need for a showing of constructive notice essentially renders department stores guarantors of customer safety with respect to hazards created by other patrons. The duty imposed upon property owners, however, is not one of “strict liability but rather requires that the landowner act reasonably when considering all the circumstances” (Peralta v Henriquez, 100 NY2d 139, 144 [2003]). Inasmuch as the evidence submitted by plaintiff is insufficient to overcome defendant’s prima facie showing of entitlement to summary judgment, I would hold that Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint. Indeed, “[bjolding otherwise . . . creates a precedent that expands the ‘recurring unsafe condition’ rule beyond manageable bounds” (Mazerbo v Murphy, 52 AD3d 1064, 1070 [2008, Rose, J., dissenting], appeal dismissed 11 NY3d 770 [2008]).

Specifically herein, the majority errs in concluding that the affidavits from the nonparty customers of defendant stating that the purse department was frequently in disarray create a question of fact. A plaintiff may not overcome a showing of prima facie entitlement to summary judgment merely by providing evidence that a recurring hazardous condition existed. Rather, even under our most expansive prior interpretation of the recurring condition rule, constructive notice of a recurrent dangerous condition will not be imputed absent a showing that the defendant had actual knowledge of the “ongoing and recurring unsafe condition which regularly went unaddressed” (id. at 1066 [emphasis added; internal quotation marks and citations omitted]; see Migli v Davenport, 249 AD2d 932, 933 [1998]; Snyder v Golub Corp., 199 AD2d 776, 777 [1993], lv denied 83 NY2d 754 [1994]). The affidavits of the nonparty customers, however, do not constitute evidence of either required element— i.e., that defendant unreasonably failed to address the condition or that it had actual knowledge. First, plaintiff failed to counter defendant’s showing that the aisle in which she fell was inspected as recently as 15 minutes before the accident and, at most, 48 minutes beforehand (see Perry v Cumberland Farms, Inc., 68 AD3d 1409, 1410-1411 [2009], lv denied 14 NY3d 706 [2010]; Cochetti v Wal-Mart Stores, Inc., 24 AD3d 852, 853 [2005]; Mueller v Hannaford Bros. Co., 276 AD2d 819, 819 [2000]; Walker v Golub Corp., 276 AD2d 955, 956 [2000]; cf. Hagin v Sears, Roebuck & Co., 61 AD3d 1264, 1266 [2009]; Rosati v Kohl’s Dept. Stores, 1 AD3d 674, 675 [2003]). Even viewing plaintiffs allegations of fact as true, as we must, imputing constructive notice based upon a recurring condition would *963be unwarranted given this evidence of remedial action addressing the allegedly unsafe condition just prior to the incident.

Furthermore, the affidavits of the nonparty customers are devoid of any evidence of the type that this Court or the Court of Appeals has found sufficient to establish or give rise to an inference that defendant “had actual notice of a particular recurring safety issue that was reasonably within [its] power to correct” (Chianese v Meier, 98 NY2d 270, 278 [2002]). The affidavits do not contain evidence that defendant had actual knowledge of any dangerous condition in its purse department (cf. Bush v Mechanicville Warehouse Corp., 69 AD3d 1207, 1208 [2010]; Lowe v Spada, 282 AD2d 815, 815-817 [2001]). In addition, the majority concedes that defendant had received no prior complaints about its store or the purse department, and plaintiff presented no evidence contradicting defendant’s showing that there were no prior accidents in the area where she fell (cf. Chianese v Meier, 98 NY2d at 278; Mazerbo v Murphy, 52 AD3d at 1066-1067). Contrary to the majority’s view, the affidavit of defendant’s employee averring that customers occasionally left clothing hanging at a nearby price checker is not relevant to the issue of defendant’s actual notice that purses on its floor — the particular dangerous condition that caused plaintiffs fall — presented a recurring, hazardous condition (cf. Bray v McGillicuddy’s Tap House, Ltd., 41 AD3d 1069, 1070-1071 [2007]; Rosati v Kohl’s Dept. Stores, 1 AD3d at 675). Under these circumstances, the conceded awareness of defendant’s store manager that items, including purses, were regularly dropped on the floor of its store and other retail stores “shows only a general awareness that a dangerous condition may be present” (Perry v Cumberland Farms, Inc., 68 AD3d at 1411).

Such evidence is therefore legally insufficient to either create a question of fact regarding constructive notice or to obviate the need for a showing of notice, particularly given the absence of any “proof disputing the evidence that the [purse] had been present for only a short time” (id. at 1411; see Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]; Cochetti v Wal-Mart Stores, Inc., 24 AD3d at 853; Gloria v MGM Emerald Enters., 298 AD2d 355, 355-356 [2002]; Van Winkle v Price Chopper Operating Co., 239 AD2d 692, 693 [1997]; Mercer v City of New York, 223 AD2d 688, 691 [1996], affd 88 NY2d 955 [1996]). That is, “on the evidence presented, the [purse] that caused plaintiff’s fall could have been deposited there only minutes or seconds before the accident and any other conclusion would be pure speculation” (Gordon v American Museum of Natural History, 67 NY2d 836, 838 [1986]; accord Rivera v *9642160 Realty Co., L.L.C., 4 NY3d 837, 838-839 [2005]; see Anderson v Klein’s Foods, 73 NY2d 835 [1988], affg on op below 139 AD2d 904, 905 [1988]).

Ordered that the order is reversed, on the law, with costs, and motion denied.