Opinion
2001-09776
Argued January 14, 2003.
February 13, 2003.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Nassau County (DeMaro, J.), dated September 21, 2001, which granted the motion of the defendant DTUT for summary judgment, and dismissed the complaint insofar as asserted against it.
Horowitz, Greener Stengel, LLP, New York, N.Y. (Barry Horowitz and Adam M. Stengel of counsel), for appellants.
Fixler Associates, LLP, Elmsford, N.Y. (Jason L. Fixler of counsel), for respondents.
Before: DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order and judgment is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated insofar as asserted against the defendant DTUT.
The plaintiff Sherry Streit allegedly was injured when she tripped and fell down a step in the defendant's establishment due to a dangerous condition caused by, inter alia, inadequate lighting. She and her husband commenced this action seeking damages for personal injuries, etc. The defendant DTUT moved for summary judgment dismissing the complaint insofar as asserted against it. However, DTUT did not establish its prima facie entitlement to summary judgment. It failed to proffer evidence that the lighting was adequate. Moreover, it did not proffer evidence that inadequate lighting was not a proximate cause of the accident. Further, it did not show that inadequate lighting was a condition that it neither created nor had actual or constructive notice of (see e.g. Goldfarb v. Kzichevsky, 280 A.D.2d 583; Telesco v. Bateau, 273 A.D.2d 894; Freidah v. Hamlet Golf Country Club, 272 A.D.2d 572; Garcia v. New York City Tr. Auth., 269 A.D.2d 142; Rivas v. Waldbaums Supermarket, 247 A.D.2d 600). Accordingly, the motion for summary judgment should have been denied.
RITTER, J.P., GOLDSTEIN, LUCIANO and SCHMIDT, JJ., concur.