Opinion
2013-11-13
Gary GRIFFITH, respondent, v. JK CHOPRA HOLDING, LLC, et al., appellants.
Richard T. Lau, Jericho, N.Y. (Nancy Goodman of counsel), for appellants. Scott Baron & Associates, P.C., Howard Beach, N.Y., for respondent.
Richard T. Lau, Jericho, N.Y. (Nancy Goodman of counsel), for appellants. Scott Baron & Associates, P.C., Howard Beach, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Gavrin, J.), entered September 18, 2012, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On June 30, 2009, the plaintiff, a mail carrier, allegedly was injured when he fell down an exterior staircase located at a building on 122nd Street in Queens. In February 2010, he commenced this action against the defendants, the alleged owners of the premises, to recover damages for personal injuries. After the completion of discovery, the defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the motion.
By failing to demonstrate when the area where the plaintiff fell was last inspected in relation to the accident, the defendants failed to make a prima facie showing that they lacked constructive notice of the allegedly dangerous condition described by the plaintiff ( see Green v. Quincy Amusements, Inc., 108 A.D.3d 591, 969 N.Y.S.2d 489;Green v. Albemarle, LLC, 107 A.D.3d 948, 948, 966 N.Y.S.2d 904;Alexander v. New York City Hous. Auth., 89 A.D.3d 969, 933 N.Y.S.2d 357;Reyes v. Arco Wentworth Mgt. Corp., 83 A.D.3d 47, 52–53, 919 N.Y.S.2d 44). Further, the defendants, by merely pointing to gaps in the plaintiff's proof, rather than affirmatively demonstrating the merit of their defense, failed to carry their burden as movants seeking summary judgment on the issue of whether the condition complained of did in fact constitute a defect ( see Green v. Albemarle, LLC, 107 A.D.3d at 948, 966 N.Y.S.2d 904;Proulx v. Entergy Nuclear Indian Point 2, LLC, 98 A.D.3d 492, 949 N.Y.S.2d 178;Delaney v. Town Sports Intl., 88 A.D.3d 635, 930 N.Y.S.2d 247;Gestetner v. Teitelbaum, 52 A.D.3d 778, 860 N.Y.S.2d 208;see also Marielisa R. v. Wolman Rink Operations, LLC, 94 A.D.3d 963, 942 N.Y.S.2d 215;Rubistello v. Bartolini Landscaping, Inc., 87 A.D.3d 1003, 1005, 929 N.Y.S.2d 298;Shafi v. Motta, 73 A.D.3d 729, 730, 900 N.Y.S.2d 410).
Since the defendants failed to satisfy their prima facie burden, the Supreme Court properly denied their motion for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiff's opposition papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).