| Bruk v Razag, Inc. |
| 2009 NY Slip Op 01763 [60 AD3d 715] |
| March 10, 2009 |
| Appellate Division, Second Department |
| Levi Bruk, Appellant, v Razag, Inc., Respondent, et al.,Defendant. |
—[*1] Morris Duffy Alonso & Faley, New York, N.Y. (Andrea Alonso and Anna J. Ervolina ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated January30, 2008, as granted that branch of the cross motion of the defendant Razag, Inc., which was forsummary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the cross motion of the defendant Razag, Inc., which was for summary judgmentdismissing the complaint insofar as asserted against it is denied.
The plaintiff slipped and fell, allegedly on a slice of cucumber, while attending a weddingreception catered by the defendant, Razag, Inc. (hereinafter Razag). After the plaintiffcommenced this action, Razag, inter alia, cross-moved for summary judgment dismissing thecomplaint insofar as asserted against it on the ground that it neither created nor had actual orconstructive notice of the hazardous condition.
"A defendant who moves for summary judgment in a slip-and-fall case has the initial burdenof making a prima facie case showing that it neither created the hazardous condition nor hadactual or constructive notice of its existence for a sufficient length of time to discover andremedy it" (Sloane v Costco WholesaleCorp., 49 AD3d 522, 523 [2008] [internal quotation marks omitted]). Here, Razagfailed to meet its burden of establishing that it did not have constructive notice of the allegedly[*2]hazardous condition. Specifically, it did not submit evidenceas to when the floor was last inspected prior to the plaintiff's accident (see Marshall v Jeffrey Mgt. Corp., 35AD3d 399, 400 [2006]). Under these circumstances, it is not necessary to consider thesufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]). Prudenti, P.J., Spolzino, Ritter and Santucci, JJ., concur.