Opinion
2003-03512.
Decided February 17, 2004.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Richmond County (Gigante, J.), dated March 21, 2003, which denied their motion for summary judgment dismissing the complaint.
Jacobowitz, Garfinkel Lesman, New York, N.Y. (Fiedelman McGaw [Dawn C. DeSimone] of counsel), for appellants.
Lurie Flatow, P.C., New York, N.Y. (Sanford S. Lurie of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., HOWARD MILLER, ROBERT W. SCHMIDT and STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The plaintiff allegedly sustained injuries as a result of a slip and fall on spilled liquid while descending a staircase within the defendants' premises. The defendants established, prima facie, their entitlement to judgment as a matter of law by demonstrating the absence of a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320). In opposition, the plaintiff failed to raise a triable issue of fact regarding whether the defendants created or had actual notice of the allegedly dangerous condition ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Yearwood v. Cushman Wakefield, 294 A.D.2d 568, 568-569; cf. Petri v. Half Off Cards, 284 A.D.2d 444). Moreover, there was no evidence that the defendant had constructive notice of the condition. In the absence of proof as to how long the liquid was on the stair, no inference may be drawn that the defendants had constructive notice thereof ( see Yearwood v. Cushman Wakefield, supra at 569). Even if the defendants had a general awareness of spilled liquid on the stair, this would be insufficient to establish constructive notice of the particular condition which caused the plaintiff to slip and fall ( see Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969; Gloria v. MGM Emerald Enters., 298 A.D.2d 355, 356).
Accordingly, as no evidence was presented to establish that the defendants had either actual or constructive notice of the allegedly hazardous condition that caused the plaintiff to slip and fall, the complaint must be dismissed ( see Gloria v. MGM Emerald Enters., supra).
FLORIO, J.P., H. MILLER, and SCHMIDT, JJ., concur.
I separately concur on constraint of Gloria v. MGM Emerald Enters. ( 298 A.D.2d 355).