Casanova v Hamilton-Sharp Props., LLC

2004 NYSlipOp 08828

November 29, 2004

Appellate Division, Second Department

Gorge Casanova, Respondent, v Hamilton-Sharp Properties, LLC, Appellant.

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In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (M. Garson, J.), dated July 9, 2003, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

On December 31, 2000, the plaintiff was injured when he fell down a stairway in a Manhattan apartment building owned by the defendant. He alleged that his fall was caused by a defective step.

The defendant failed to satisfy its prima facie burden of demonstrating its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]), as it failed to establish the absence of notice of the allegedly defective condition as a matter of law (see Colon v Produce Warehouse Carle Place, 303 AD2d 354 [2003]). Accordingly, the defendant's motion was properly denied without considering the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438 [1996]; Colon v Produce Warehouse Carle Place, supra). Smith, J.P., Crane, Mastro and Skelos, JJ., concur.