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Sheehan v. Stevens

Appellate Division of the Supreme Court of New York, Second Department
Apr 10, 2007
39 A.D.3d 622 (N.Y. App. Div. 2007)

Summary

finding moving party submitted evidence sufficient to demonstrate that it had no constructive notice of the condition

Summary of this case from ST. PAUL MERCURY INS. v. PEPSI-COLA BOTTLING CO. OF NY

Opinion

No. 2006-01717.

April 10, 2007.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), entered January 25, 2006, which granted the defendant's motion for summary judgment dismissing the complaint.

Sullivan Papain Block McGrath Cannavo, P.C., New York, N.Y. (Stephen C. Glasser and Stephanie Hatzakos of counsel), for appellants.

Fogarty, Felicione Duffy P.C., Mineola, N.Y. (Garrett Duffy of counsel), for respondent.

Before: Rivera, J.P., Dillon, Angiolillo and Dickerson, JJ., concur.


Ordered that the order is affirmed, with costs.

A defendant property owner who moves for summary judgment in a premises liability case has the initial burden of establishing, prima facie, that it neither created the defective condition nor had actual or constructive notice of the condition for a sufficient length of time to discover and remedy it ( see Solomon v Loszynski, 21 AD3d 366; McKeon v Town of Oyster Bay, 292 AD2d 574; Abrams v Powerhouse Gym Merrick, 284 AD2d 487). Only after the defendant has satisfied this threshold burden will the court examine the sufficiency of the plaintiff's opposition ( see Joachim v 1824 Church Ave., Inc., 12 AD3d 409). Here, the defendant established its entitlement to judgment as a matter of law by submitting evidence sufficient to demonstrate that it neither created nor had actual or constructive notice of the alleged defective condition, namely, the gap between the cushion seat and the frame of the chair which caused the plaintiff Lauraine Sheehan to sustain injuries. In opposition, the plaintiffs failed to submit evidence sufficient to raise a triable issue of fact ( see Romano v Stanley, 90 NY2d 444, 452; Martinez v Roberts Consol. Indus., 299 AD2d 399; cf. Currado v Waldbaum, Inc., 303 AD2d 442, 443; Dawson v National Amusements, 259 AD2d 329; Albergo v Deer Park Meat Farms, 138 AD2d 656).


Summaries of

Sheehan v. Stevens

Appellate Division of the Supreme Court of New York, Second Department
Apr 10, 2007
39 A.D.3d 622 (N.Y. App. Div. 2007)

finding moving party submitted evidence sufficient to demonstrate that it had no constructive notice of the condition

Summary of this case from ST. PAUL MERCURY INS. v. PEPSI-COLA BOTTLING CO. OF NY

discussing allocation of burden

Summary of this case from ST. PAUL MERCURY INS. v. PEPSI-COLA BOTTLING CO. OF NY
Case details for

Sheehan v. Stevens

Case Details

Full title:LAURAINE SHEEHAN et al., Appellants, v. J.J. STEVENS Co., INC., Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 10, 2007

Citations

39 A.D.3d 622 (N.Y. App. Div. 2007)
2007 N.Y. Slip Op. 3122
833 N.Y.S.2d 237

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