| Birnbaum v New York Racing Assn., Inc. |
| 2008 NY Slip Op 09741 [57 AD3d 598] |
| December 9, 2008 |
| Appellate Division, Second Department |
| Marion Birnbaum, Appellant, v New York Racing Association,Inc., Respondent. |
—[*1] Certilman Balin Adler & Hyman, LLP, East Meadow, N.Y. (Matthew J. Bizzaro and RobertConnolly of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of theSupreme Court, Queens County (Hart, J.), dated April 11, 2006, which granted the defendant's motionfor summary judgment dismissing the complaint. Justices McCarthy, Dickerson, and Eng have beensubstituted for Justices Adams, Goldstein, and Lunn (see 22 NYCRR 670.1 [c]).
Ordered that the order is reversed, on the law, with costs, and the motion for summary judgmentdismissing the complaint is denied.
"A defendant who moves for summary judgment in a slip-and-fall case has the initial burden ofmaking a prima facie showing that it neither created the hazardous condition nor had actual orconstructive notice of its existence for a sufficient length of time to discover and remedy it" (Yioves v T.J. Maxx, Inc., 29 AD3d572, 572 [2006]; see Britto v Great Atl.& Pac. Tea Co., Inc., 21 AD3d 436 [2005]; Joachim v 1824 Church Ave., Inc., 12 AD3d 409, 410 [2004];Stumacher v Waldbaum, Inc., 274 AD2d 572 [2000]). Only after the movant has satisfied thisthreshold burden will the court examine the sufficiency of the plaintiff's opposition (see Britto v Great Atl. & Pac. Tea Co., Inc.,21 AD3d 436 [2005]; Joachim v1824 Church Ave., Inc., 12 AD3d 409 [2004]). "To constitute constructive notice, a defectmust be visible and apparent and it must exist for a sufficient length of time prior to the accident topermit [the] defendant's employees to discover and remedy it" (Gordon v American Museum ofNatural History, [*2]67 NY2d 836, 837 [1986]).
To meet its initial burden on the issue of lack of constructive notice, the defendant must offer someevidence as to when the area in question was last cleaned or inspected relative to the time when theplaintiff fell (see Porco v Marshalls Dept.Stores, 30 AD3d 284, 285 [2006]; Feldmus v Ryan Food Corp., 29 AD3d 940, 941 [2006]; Yioves vT.J. Maxx, Inc., 29 AD3d at 573; Britto v Great Atl. & Pac. Tea Co., Inc., 21 AD3d at437; Lorenzo v Plitt Theatres, 267 AD2d 54, 56 [1999]). The defendant failed to satisfy itsinitial burden. The deposition testimony of the defendant's assistant cleaning manager merely referred tothe subject racetrack's general daily cleaning practices. The assistant cleaning manager tendered noevidence regarding any particularized or specific inspection or stair-cleaning procedure in the area ofthe plaintiff's fall on the date of the accident.
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgmentdismissing the complaint regardless of the sufficiency of the plaintiff's opposition papers. Florio, J.P.,McCarthy, Dickerson and Eng, JJ., concur.