The following papers numbered 1 to 5 read on the below motion noticed on December 27, 2016 and duly submitted on the Part IA15 Motion calendar of February 5, 2018:Papers Submitted NumberedDef.’s Notice of Motion, Exhibits 1,2Pl. Aff. In Opp., Exhibits 3,4Def.’s Aff. in Reply 5DECISION/ORDER Upon the foregoing papers, the defendant Speedway LLC. (“Defendant”) moves for summary judgment, dismissing the complaint of the plaintiff Azalia Banuchi (“Plaintiff”) pursuant to CPLR 3212. Plaintiff opposes the motion.Plaintiff alleges that on August 6, 2013, she was walking through Defendant’s parking lot when she stepped on a manhole cover with her left foot. As she did so, the manhole cover tilted up, causing her left leg to fall into the hole and sustain injuries. Defendant now moves for summary judgment on the grounds that it did not create, and lacked actual or constructive notice of the allegedly hazardous condition that caused Plaintiff’s injuries.To be entitled to the “drastic” remedy of summary judgment, the moving party “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case.” (Winegrad v. New York University Medical Center, 64 N.Y.2d 851 [1985]; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id., see also Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Facts must be viewed in the light most favorable to the non-moving party (Sosa v. 46th Street Development LLC., 101 A.D.3d 490 [1st Dept. 2012]). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 N.Y.3d 499 [2012]). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire’s Hospital, 82 N.Y.2d 738 [1993]).It is well-settled that a landowner must act as a reasonable person in maintaining the property in a reasonably safe condition, in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (Peralta v. Henriquez, 100 N.Y.2d 139, 144 [2003]). To impose liability upon a landowner in a premises liability-related action, there must be evidence that a dangerous or defective condition existed and that the defendant either created or had actual or constructive notice of the condition (Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967 [1994]). To constitute constructive notice, a defect must be visible and apparent, and must exist for a sufficient length of time before the accident to permit defendant’s employees to discover and remedy it. (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986]). Mere notice of a general or unrelated condition is not enough to constitute constructive notice. The particular defect that caused the damage must have been apparent (id. at 838). Importantly, it is not the plaintiff’s burden in opposing a motion for summary judgment to establish that defendants had actual or constructive notice of the hazardous condition. Rather, it is defendant’s burden to establish lack of notice as a matter of law (Giuffrida v. Metro N., Commuter R.R. Co., 279 A.D.2d 403, 404 [1st Dept. 2001]). Such a moving defendant must demonstrate the lack of evidence regarding how the alleged condition came into existence, how visible and apparent it was, and for how long a period of time prior to the accident it existed (Id.).In this matter, Defendant established prima facie that it did not create and had no actual or constructive notice of the defective manhole cover located on its premises. Defendant’s employee Diallo testified that every day he would inspect the area where the manhole covers or “dispenser caps” were located (Diallo EBT at 19). When he inspected the area, he would step on the manhole covers to ensure that they were secure (id. at 22-23). Diallo never previously found that a manhole cover was not secure upon inspection (id. at 23). When he checks the manhole covers, he steps “everywhere” including the center and edges (id. at 42-43). When Plaintiff told him about the accident, Diallo went to the scene and noted that the cover was open and not flush with the concrete (id. at 34-35). Prior to this incident, however, there had been no injuries or accidents involving the manhole covers (id. at 21), and Diallo had never observed a manhole cover loose or open as it was on the date of this accident (id. at 35). In addition, Diallo testified that on the date of this accident, he stepped on this particular manhole cover and noted that it did not lift (id. at 43). Earlier in his testimony, Diallo was asked if the cover was “loose” and he responded: “[j]ust a little bit, but you could not get anything, but it’s only if a car passes through. When a car drivers through that, you hear some noise from it” (id. at 31). He was asked again if the cover was loose when he checked it, and Diallo responded “no,” and he said that it was completely flush to the ground (id. at 31).Plaintiff’s own testimony further establishes that any alleged defect in the manhole cover was not visible or apparent. Plaintiff testified that she had walked through this parking lot approximately once a week over the last twenty (20) years and she had never previously experienced any problems with manhole covers (Pl. EBT at 27-28). Plaintiff in fact testified that she had previously stepped on manhole covers and she never had any problems (id). Plaintiff’s daughter testified that she had walked through the area many times and never had issues walking through the area and she never heard of anyone sustaining injuries due to the manhole covers (Kiana Banuchi EBT at 34).In opposition to the motion, Plaintiff argues that Diallo’s testimony raises issues of fact as to notice, since Diallo testified that the manhole cover was “loose” and made noises when cars passed over it. However, Diallo did not state that the manhole cover was “loose,” as Plaintiff omits Diallo’s continued testimony. When asked in a follow up question whether the cover was loose when he checked it, Diallo answered “no” (id. at 31:13-15). In addition, the fact that the manhole cover may have made noise when a car drove over it did not alert Defendant of the possibility that the cap would tilt. Diallo testified that before the accident he had stepped on the subject manhole cover and it did not tilt (id at 43). Diallo further testified that he checked the manhole covers as part of his job duties, and he always stepped on all sides, and he never had prior issues with them. Furthermore, Defendant was unaware of any prior instances where the manhole cover tilted in the way that it allegedly did at the time of Plaintiff’s accident. This testimony establishes that Defendant performed a reasonable inspection of the subject premises and these inspections did not reveal the existence of the defective condition that allegedly caused this accident (see Hayes v. Riverbend Hous. Co. Inc., 40 A.D.3d 500 [1st Dept. 2007], lv. den., 9 N.Y.3d 809 [2007]). Since the defect was not visible or apparent despite reasonable inspection, Defendant cannot be charged with actual or constructive notice of the condition, and thus this action must be dismissed (see Soto v. New Frontiers 2 Hope Hous. Dev. Fund Co., Inc., 118 A.D.3d 471 [1st Dept. 2014]; see also Schwartz v. Empire City Subway Co. (Ltd.), 106 A.D.3d 464 [1st Dept. 2013]). The Suffolk County trial court decision Schmidin v. Next Gas Corp., 2016 N.Y. Slip. Op. 32520 (U) (Sup. Ct., Suff., 2016) is distinguishable because in that case, there was conflicting testimony as to whether a grate that caused the plaintiff to fall was secured properly at the time is was installed, and there were issues of fact as to who was responsible for maintaining the grate. In the case at bar, there is nothing refuting Diallo’s testimony which established that there was no readily apparent defect in the manhole cover prior to this accident. Diallo’s confirmation that the manhole cover was open when he went to the scene after the accident occurred is not relevant to the issue of notice.Accordingly, it is herebyORDERED, that Defendant’s motion for summary judgment is granted, and it is further,ORDERED, that Plaintiff’s complaint is dismissed with prejudice.This constitutes the Decision and Order of this Court.Dated: June 12, 2018
