| Arzola v Boston Props. Ltd. Partnership |
| 2009 NY Slip Op 04366 [63 AD3d 655] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Emperatriz Arzola, Respondent, v Boston PropertiesLimited Partnership et al., Appellants. |
—[*1] Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Queens County (Weiss, J.), dated November 17, 2008, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly tripped and fell over a mat which had been placed in the lobby of thedefendants' building due to inclement weather. Although the edges of the mat had been taped tothe floor, the plaintiff claims that the front of the mat was bunched up and raised prior to her fall.After depositions had been conducted, the defendants moved for summary judgment dismissingthe complaint on the ground that they neither created nor had actual or constructive notice of thealleged hazardous condition of the mat. The Supreme Court denied the defendants' motion,concluding that they had failed to sustain their initial burden of establishing their entitlement tojudgment as a matter of law. We agree.
A defendant who moves for summary judgment in a trip-and-fall case has the initial burdenof making a prima facie showing that it neither created the alleged hazardous condition, nor hadactual or constructive notice of its existence for a length of time sufficient to discover andremedy it (see Bruk v Razag, Inc.,60 AD3d 715 [2009]; Birnbaum vNew York Racing Assn., Inc., 57 AD3d 598 [2008]; Totten v Cumberland Farms, Inc., 57 AD3d 653, 654 [2008]; Soto-Lopez v Board of Mgrs. of Crescent[*2]Tower Condominium, 44 AD3d 846 [2007]). Tosustain this burden, "the defendant must offer some evidence as to when the area in question waslast . . . inspected relative to the [accident]" (Birnbaum v New York RacingAssn., Inc., 57 AD3d at 599; seeBruk v Razag, Inc., 60 AD3d 715 [2009]; Soto-Lopez v Board of Mgrs. of Crescent Tower Condominium, 44AD3d 846 [2007]; Porco vMarshalls Dept. Stores, 30 AD3d 284, 285 [2006]; Joachim v 1824 Church Ave., Inc., 12 AD3d 409, 410 [2004]).Since the defendants offered no evidence as to when the lobby area where the plaintiff fell waslast inspected prior to the accident (cf. Hayden v Waldbaum, Inc., 63 AD3d —,2009 NY Slip Op 04380 [2009] [decided herewith]), they failed to make a prima facie showingthat they did not have constructive notice of the alleged hazardous condition of the mat. In viewof the defendants' failure to satisfy their prima facie burden, it is unnecessary to consider whetherthe papers submitted by the plaintiffs were sufficient to raise a triable issue of fact (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Bruk v Razag, Inc., 60 AD3d 715[2009]). Rivera, J.P., Eng, Chambers and Hall, JJ., concur.