| Gregg v Key Food Supermarket |
| 2008 NY Slip Op 04055 [50 AD3d 1093] |
| April 29, 2008 |
| Appellate Division, Second Department |
| Patricia Gregg, Appellant, v Key Food Supermarket,Respondent. |
—[*1] Hammill, O'Brien, Croutier, Dempsey & Pender, P.C., Syosset, N.Y. (Maureen Quinn ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Vaughan, J.), dated May 2, 2007, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
The plaintiff alleged that she was injured when she slipped on a puddle of water extendingapproximately four feet from a freezer at the defendant supermarket. After discovery wascompleted, the defendant moved for summary judgment dismissing the complaint on the groundthat it had neither created the dangerous condition that allegedly caused the plaintiff's injuries norhad actual nor constructive notice of it.
To demonstrate its entitlement to summary judgment in a slip-and-fall case, a defendant mustestablish, prima facie, that it did not create the condition that allegedly caused the fall and did nothave actual or constructive notice of that condition for a sufficient length of time to remedy it (see Musso v Macray Movers, Inc., 33AD3d 594, 595 [2006]; Yioves vT.J. Maxx, Inc., 29 AD3d 572 [2006]; Ulu v ITT Sheraton Corp., 27 AD3d 554 [2006]). This burdencannot be satisfied merely by pointing to gaps in the plaintiff's case (see DeFalco v BJ's Wholesale Club,Inc., 38 AD3d 824, 825 [2007]; Cox v Huntington Quadrangle No. 1 Co., 35 AD3d 523, 524; Pearson v Parkside Ltd. Liab. Co., 27AD3d 539 [2006]). [*2]Moreover, when the defendant failsto meets its burden, the motion must be denied without regard to the sufficiency of the plaintiff'sopposition papers (see Smalls v AJIIndus., Inc., 10 NY3d 733, 735 [2008]; Musso v McCray Movers, Inc., 33 AD3dat 595; Flynn v Fedcap RehabilitationServs., Inc. 31 AD3d 602, 603 [2006]).
Here, the defendant failed to satisfy its prima facie burden of establishing lack of notice.Accordingly, its motion for summary judgment dismissing the complaint should have beendenied (see Cox v Huntington Quadrangle No. 1 Co., 35 AD3d at 523-524; Ames v Waldbaum, Inc., 34 AD3d607 [2006]; Yioves v T.J. Maxx, Inc., 29 AD3d at 573). Prudenti, P.J., Fisher, Millerand Balkin, JJ., concur.