Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of filed on June 16, 2025, under motion sequence two, by 100 Church Fee Owner LLC and SL Green Realty Corporation (hereinafter the defendants or movants) for an order pursuant to CPLR 3212 granting summary judgment in their favor on the issue of liability and dismissing the complaint of Miriam Ordonez (hereinafter the plaintiff). The motion is opposed.

Exhibits A-I

On November 8, 2023, the plaintiff commenced the instant action for damages for personal injury by filing a summons and verified complaint with the Kings County Clerk's office (KCCO). On December 22, 2023, the plaintiff filed a notice of discontinuance against defendant National Registered Agents, Inc. On January 23, 2024, the movant interposed and filed a joint verified answer.

The verified complaint alleges the following salient facts, among others. On December 22, 2022, the plaintiff was lawfully on premises located at a certain address in New York County (hereinafter the subject premises) and owned and managed by the defendants. On that date, the plaintiff slipped and fell (hereinafter the subject accident) due to a dangerous condition caused by the defendants' negligent maintenance of the subject premises. The subject accident caused the plaintiff to sustain serious physical injuries.

The movants made three arguments in the memorandum of law submitted in support of their motion, First, they contended that the plaintiff used speculation and conjecture to conclude that a wet floor was what caused her to fall. Second, they contended that the likely cause of plaintiff's fall was that she rolled her ankle, rather than as a result of any negligence by the defendants. Third, they contended that plaintiff's complaint had to be dismissed because they had all proper safety measures and warnings in place.

At her deposition, the plaintiff testified that she slipped and fell due to the floor on the subject premise being wet. The movants argue that although she did provide that testimony she was guessing or speculating that her slip and fall was caused by the wet condition of the floor. The movants' contention that plaintiff was guessing, however, had no evidentiary basis.

The movants submitted a video recording of the subject accident to support their second and third argument. The video image, however, did not clearly demonstrate that the likely cause of plaintiff's fall was that she rolled her ankle. This argument was merely an opinion of the movant and was not supported by the video image or any other evidence provided in support of the motion. Moreover, the issue of proximate causation is generally a triable issue of fact for the jury (see Kalland v Hungry Harbor Assoc., LLC., 84 AD3d 889, 889 [2d Dept 2011]).

The movants contended that the video recording demonstrated that mats and warning signs were placed in the lobby where the subject accident occurred.

It is well established that summary judgment may be granted only when no triable issue of fact exists (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating "the absence of any material issues of fact" (Alvarez, 68 NY2d at 324; Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]).

A failure to make that showing "requires the denial of the summary judgment motion, [*2]regardless of the sufficiency of the opposing papers" (Alvarez, 68 NY2d at 324; Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]). If a prima facie showing has been made, "the burden shifts to the party opposing the motion to produce evidentiary proof" sufficient to "establish the existence of material issues of fact" (Alvarez, 68 NY2d at 324). "Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, 'that there is no defense to the cause of action or that the cause of action or defense has no merit.' Further, all the evidence must be viewed in the light most favorable to the opponent of the motion" (People v Grasso, 50 AD3d 535, 544 [1st Dept 2008], quoting Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610, 610 [2d Dept 1990]).

"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" (Parietti v Wal-Mart Stores, Inc., 29 NY3d 1136, 1137 [2017]; see Murray v Banco Popular, 132 AD3d 743, 744 [2d Dept 2015]). While a "defendant [is] not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain" (Negron v St. Patrick's Nursing Home, 248 AD2d 687, 687 [2d Dept 1998]; Beceren v Joan Realty, LLC, 124 AD3d 572, 572 [2d Dept 2015]). "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 AD3d 650, 651 [2d Dept 2009], citing Ruic v Roman Catholic Diocese of Rockville Ctr., 51 AD3d 1000, 1001 [2d Dept 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" (Rivera v Roman Catholic Archdiocese of NY, 197 AD3d 744, 745 [2d Dept 2021], citing Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598-599; Vinokurova v Edith & Carl Marks Jewish Community House of Bensonhurst, Inc., 212 AD3d 751, 752 [2d Dept 2023]).

Here, the evidence submitted by the movants in support of its motion failed to demonstrate, prima facie, that it lacked constructive notice of the alleged dangerous condition that caused the plaintiff to fall. The defendant did not proffer any evidence demonstrating when the floor of the subject premise was last cleaned or inspected before the accident (see Hussain v Neurology Continuum, P.C., 226 AD3d 987, 988 [2d Dept 2024]; see Yarmak v LSS Leasing Corp., 219 AD3d 1472, 1472-1473 [2d Dept 2023]).

Since the moving defendants did not sustain their prima facie burden of establishing their entitlement to judgment as a matter of law, it is not necessary to consider the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

The motion by defendants 100 Church Fee Owner LLC and SL Green Realty Corporation for an order pursuant to CPLR 3212 granting summary judgment in their favor on the issue of liability and dismissing the complaint of plaintiff Miriam Ordonez is denied.

The foregoing constitutes the decision and order of this Court.