Opinion
May 30, 1997
Present — Green, J.P., Pine, Lawton, Boehm and Fallon, JJ.
Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied defendant's motion for summary judgment. Although plaintiff will bear the burden at trial of proving that defendant created the allegedly dangerous condition of the stairs or had actual or constructive notice of it ( see, Lowrey v. Cumberland Farms, 162 A.D.2d 777, 778), on its motion for summary judgment defendant bore the burden of establishing its entitlement to judgment as a matter of law ( see, Jordan v Musinger, 197 A.D.2d 889). Defendant failed to meet that burden ( see, Jordan v. Musinger, supra; cf., Yaroschak v. Suffern Window Cleaning Co., 174 A.D.2d 887, 888; Katz v. New York Hosp., 170 A.D.2d 345; Lowrey v. Cumberland Farms, supra, at 778), and we therefore do not consider the sufflciency of plaintiff's submissions in opposition to the motion ( see, Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324). (Appeal from Order of Supreme Court, Erie County, Gorski, J. — Summary Judgment.)