| Starling v Suffolk County Water Auth. |
| 2009 NY Slip Op 04889 [63 AD3d 822] |
| June 9, 2009 |
| Appellate Division, Second Department |
| Mollie Starling et al., Appellants, v Suffolk County WaterAuthority, Respondent, et al., Defendant. |
—[*1] O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Michael T. Regan of counsel),for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of a judgment of the Supreme Court, Suffolk County (R. Doyle, J.),entered February 22, 2008, as, upon an order of the same court dated January 10, 2008, grantingthe motion of the defendant Suffolk County Water Authority, inter alia, for summary judgmentdismissing the complaint insofar as asserted against it, is in favor of that defendant and againstthem, dismissing the complaint insofar as asserted against that defendant.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The plaintiff Mollie Starling allegedly was injured when she stepped on a water meter coverowned and maintained by the defendant Suffolk County Water Authority (hereinafter SCWA),which was located outside a fence in front of her home.
"To impose liability upon a defendant in a trip-and-fall action, there must be evidence that adangerous or defective condition existed, and that the defendant either created the condition orhad actual or constructive notice of it" (Denker v Century 21 Dept. Stores, LLC, 55 AD3d 527, 528[2008]; see Weber v City of NewYork, 24 AD3d 130, 131 [2005]; LoCurto v City of New York, 2 AD3d 277 [2003]). A defendantmoving for summary judgment in a personal injury action has the burden of establishing that itdid not create the defective condition or have actual or constructive notice of its existence (see Noia v Maselli, 45 AD3d 746,747 [2007]; Franks v G & H Real EstateHolding Corp., 16 AD3d 619, 620 [2005]). Here, SCWA established its prima facieentitlement to judgment as a matter of law by demonstrating that it neither created nor had actualor constructive notice of the unsecured water meter cover. In opposition to the motion, theplaintiffs failed to raise a triable issue of fact (see generally Applegate v Long Is. Power Auth., 53 AD3d 515,515-516 [2008]). Accordingly, the Supreme Court properly awarded SCWA summary judgmentdismissing the complaint insofar as asserted against it.
The plaintiffs' remaining contentions are without merit. Mastro, J.P., Dillon, Santucci andBalkin, JJ., concur.