Opinion
2002-10921.
December 29, 2003.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated October 4, 2002, which granted the defendant's motion for summary judgment dismissing the complaint.
Litman Litman, P.C., New York, N.Y., (Jeffrey E. Litman of counsel), for appellant.
Epstein, Grammatico, Gann, Frankini Marotta, Woodbury, N.Y., (Michele Musarra and Dennis Hefferman of counsel), for respondent.
Before: HOWARD MILLER and THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The defendant made a prima facie showing that he neither created nor had actual or constructive notice of the alleged condition which caused the plaintiff to slip and fall, and thus established his entitlement to judgment as a matter of law ( see Papazian v. New York City Tr. Auth., 293 A.D.2d 658; Sanchez v. Delgado Travel Agency, 279 A.D.2d 623; Mercer v. City of New York, 223 A.D.2d 688, affd 88 N.Y.2d 955; Bradish v. Tank Tech Corp., 216 A.D.2d 505). The burden then shifted to the plaintiff to come forward with evidence sufficient to show the existence of a triable issue of fact ( see Zuckerman v. City of New York, 49 N.Y.2d 557). In opposition to the defendant's motion, the plaintiff failed to submit evidence sufficient to raise a question of fact as to whether the defendant either created the alleged condition while performing construction work, or had actual or constructive notice thereof ( see Papazian v. New York City Tr. Auth., supra; Sanchez v. Delgado Travel Agency, supra; Mercer v. City of New York, supra; Bradish v. Tank Tech Corp., supra).
PRUDENTI, P.J., S. MILLER, H. MILLER and ADAMS, JJ., concur.