| Musachio v Smithtown Cent. School Dist. |
| 2009 NY Slip Op 09442 [68 AD3d 949] |
| December 15, 2009 |
| Appellate Division, Second Department |
| Christopher Musachio et al., Respondents, v SmithtownCentral School District, Appellant. |
—[*1] George A. Constantine, P.C., Westbury, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Suffolk County (Jones, J.), dated January 9, 2009, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The infant plaintiff (hereinafter the plaintiff), a seventh grader at Smithtown Middle School,allegedly slipped and fell during lunch period on an accumulation of water in the schoolcafeteria. The accident occurred when the plaintiff attempted to sit down on a seat in thecafeteria, which required him to first step over a bench. As he was doing so, he allegedly slippedon the water and fell to the floor, thereby sustaining personal injuries. After the plaintiffscommenced this action to recover damages for the personal injuries, the defendant moved forsummary judgment dismissing the complaint on the ground that it neither created nor had actualor constructive notice of the hazardous condition.
" 'A defendant who moves for summary judgment in a slip-and-fall case has the initialburden of making a prima facie 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' " (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598 [2008],quoting Yioves v T.J. Maxx, Inc., 29 AD3d 572, 572 [2006]). Only after the movant hassatisfied this threshold burden will the court examine the sufficiency of the plaintiff's opposition(see Joachim v 1824 Church Ave., Inc., 12 AD3d 409 [2004]). "To constituteconstructive notice, a defect must be visible and apparent and it must exist for a sufficient lengthof time prior to the accident to permit [the] defendant's employees to discover and remedy it"(Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).
To meet its initial burden on the issue of lack of constructive notice, the defendant must offersome evidence as to when the area in question was last cleaned or inspected relative to the timewhen the plaintiff fell (see Birnbaum v New York Racing Assn., Inc., 57 AD3d at598-599). The defendant failed to satisfy its initial burden. The deposition testimony of thedefendant's custodian failed to establish [*2]when the area wherethe accident occurred was last cleaned or inspected prior to the occurrence of the accident.Accordingly, the Supreme Court properly denied the defendant's motion, without considering thesufficiency of the plaintiffs' opposition papers (id. at 599). Fisher, J.P., Angiolillo,Dickerson and Leventhal, JJ., concur.