Faison v Salumed Pharmacy, Inc.
Attorneys and Parties
Brief Summary
Premises liability in a retail pharmacy—slip-and-fall on rain-tracked water and the constructive notice requirement for summary judgment.
The Supreme Court, Suffolk County, granted summary judgment dismissing the second amended complaint against Salumed Pharmacy, Inc. and 5th Ave Drug, Inc. on the ground that they lacked constructive notice of the wet floor.
The Appellate Division reversed the order insofar as it granted summary judgment to Salumed Pharmacy, Inc. and 5th Ave Drug, Inc., and denied those branches of the defendants' motion.
The defendants failed to make a prima facie showing of lack of constructive notice because they offered only general cleaning and inspection practices without evidence of when the specific area was last cleaned or inspected before the fall; therefore, the motion should have been denied regardless of the sufficiency of the plaintiff’s opposition (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [holding that a movant’s failure to meet its prima facie burden requires denial of the motion regardless of the opposition]).
Background
On a rainy day in June 2018, Hudson Faison allegedly slipped and fell on a wet tile floor inside a pharmacy owned by Salumed Pharmacy, Inc. and 5th Ave Drug, Inc. He sued those entities and Cintas Corporation for personal injuries. The defendants moved for summary judgment, arguing, among other things, that the pharmacy entities lacked constructive notice of the wet condition.
Lower Court Decision
By order dated January 22, 2024, the Supreme Court, Suffolk County, granted those branches of the defendants’ motion for summary judgment dismissing the second amended complaint against Salumed Pharmacy, Inc. and 5th Ave Drug, Inc., accepting the argument that they lacked constructive notice.
Appellate Division Reversal
The Appellate Division reversed insofar as appealed from and denied the motion as to the pharmacy defendants. It held the defendants did not meet their initial burden on summary judgment because they presented no evidence of a specific cleaning or inspection of the accident area relative to the time of the fall, relying only on general cleaning practices. Given the failure to establish a prima facie case, the motion should have been denied without regard to the plaintiff’s opposition.
Legal Significance
Reaffirms that in slip-and-fall cases involving water tracked in by rain, a defendant seeking summary judgment on lack of constructive notice must produce evidence of the specific time of the last cleaning or inspection of the precise area before the accident; generalized maintenance routines are insufficient. It also underscores the principle that a court must deny summary judgment where the movant fails to meet its prima facie burden, irrespective of the opponent’s papers.
Businesses should maintain and be able to produce contemporaneous records of specific inspections and cleanings of customer areas; without such proof, summary judgment on lack of constructive notice will likely be denied in rain-related slip-and-fall cases.