Opinion
2013-06-26
Margete GREEN, respondent, v. ALBEMARLE, LLC, et al., appellants.
Steven G. Fauth, LLC, New York, N.Y. (Scott S. Levinson of counsel), for appellants. Monaco & Monaco, LLP, Brooklyn, N.Y. (Frank A. Delle Donne of counsel), for respondent.
Steven G. Fauth, LLC, New York, N.Y. (Scott S. Levinson of counsel), for appellants. Monaco & Monaco, LLP, Brooklyn, N.Y. (Frank A. Delle Donne of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated May 17, 2012, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
A defendant in a trip-and-fall case who moves for summary judgment based on lack of notice has the initial burden of making a prima facie showing that it neither created nor had actual notice of the alleged hazardous condition, and that it did not have constructive notice of the condition for a length of time sufficient to discover and remedy it ( see Levine v. Amverserve Assn., Inc., 92 A.D.3d 728, 938 N.Y.S.2d 593;Jackson v. Jamaica First Parking, LLC, 91 A.D.3d 602, 936 N.Y.S.2d 278;Arzola v Boston Props. Ltd. Partnership, 63 A.D.3d 655, 656, 880 N.Y.S.2d 352). “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” ( Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598–599, 869 N.Y.S.2d 222;see Levine v. Amverserve Assn., Inc., 92 A.D.3d at 729, 938 N.Y.S.2d 593;Pryzywalny v. New York City Tr. Auth., 69 A.D.3d 598, 599, 892 N.Y.S.2d 181).
Here, the defendants failed to establish, prima facie, that they lacked constructive notice of the alleged condition, as the deposition testimony of the superintendent of the building in which the plaintiff fell merely referred to his general inspection practices and provided no evidence as to when the area in question was last inspected relative to the plaintiff's accident ( see Levine v. Amverserve Assn., Inc., 92 A.D.3d at 729, 938 N.Y.S.2d 593).
Moreover, contrary to the defendants' contention, the evidence submitted in supportof their motion for summary judgment, including, inter alia, photographs of the alleged defect that caused the plaintiff's fall, did not establish, prima facie, that the alleged defect was trivial and, therefore, not actionable ( see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489;Lagrasta v. Town of Oyster Bay, 88 A.D.3d 658, 659, 930 N.Y.S.2d 254;Araujo v. City of New York, 84 A.D.3d 993, 994, 922 N.Y.S.2d 806;Bolloli v. Waldbaum, Inc., 71 A.D.3d 618, 619, 896 N.Y.S.2d 400; DeLaRosa v. City of New York, 61 A.D.3d 813, 814, 877 N.Y.S.2d 439).