| Khamis v CG Foods, Inc. |
| 2008 NY Slip Op 02113 [49 AD3d 606] |
| March 11, 2008 |
| Appellate Division, Second Department |
| Amira Khamis et al., Appellants, v CG Foods, Inc.,Respondent. |
—[*1] Edward J. Troy, Greenlawn, N.Y. (Patrick J. Morganelli of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Queens County (Taylor, J.), entered November 29, 2006, which grantedthe defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the motion for summaryjudgment dismissing the complaint is denied.
The infant plaintiff allegedly sustained personal injuries when she fell through an open cellardoor, in the sidewalk, leading to the basement of the store owned by the defendant. The doorsallegedly were flat on the ground, in the open position, without any safety or cautionary devicessuch as cones, tape, or other barricades around the opening. "A property owner may be heldliable for a dangerous or defective condition on the property if the owner created the condition orhad actual or constructive notice of it" (Enamorado v KHR Holding Co., LLC, 24 AD3d 411, 412 [2005];see Ogletree v Rush Realty Assoc.,LLC, 29 AD3d 875 [2006]).
The defendant, as the proponent of the motion for summary judgment, had the initial burdenof establishing its prima facie entitlement to judgment as a matter of law by tendering proof, inadmissible form, sufficient to demonstrate the absence of any material issue of fact (seegenerally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Carbone v Lakeside Mkt. Deli & Pizza,Inc., 47 AD3d 744 [2008]; Xu v 688 Sixth Ave. Realty Co., 19 [*2]AD3d 687 [2005]). The defendant failed to make a prima facieshowing that it neither created nor had actual or constructive notice of the allegedly dangerouscondition (see Soto-Lopez v Board ofMgrs. of Crescent Tower Condominium, 44 AD3d 846 [2007]; Marshall v Jeffrey Mgt. Corp., 35AD3d 399 [2006]; Bosman vReckson FS Ltd. Partnership, 15 AD3d 517 [2005]).
As the defendant failed to make the prima facie showing necessary for an award of summaryjudgment, it is unnecessary to consider the adequacy of the plaintiffs' opposition papers (seeAlvarez v Prospect Hosp., 68 NY2d 320 [1986]; Restrepo v Rockland Corp., 38 AD3d 742 [2007]; Wolff v New York City Tr. Auth., 21AD3d 956 [2005]). Spolzino, J.P., Angiolillo, Balkin and Leventhal, JJ., concur.