| Pryzywalny v New York City Tr. Auth. |
| 2010 NY Slip Op 00125 [69 AD3d 598] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Eugeniusz Pryzywalny, Appellant, v New York CityTransit Authority, Respondent. |
—[*1] Wallace D. Gossett, Brooklyn, N.Y. (Anita Isola of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Rothenberg, J.), dated November 21, 2008, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment is denied.
On December 20, 2001, the plaintiff allegedly was injured when he tripped on a defectivestep at the 59th Street subway station in Brooklyn.
A defendant owner or entity who is responsible for maintaining a premises who moves forsummary judgment in a slip-and-fall or trip-and-fall case involving the property 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 (see Arzola v Boston Props.Ltd. Partnership, 63 AD3d 655 [2009]; see also Bruk v Razag, Inc., 60 AD3d 715 [2009]). To provideconstructive 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(see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). " 'Tomeet 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 whenthe plaintiff fell' " (Braudy v Best BuyCo., Inc., 63 AD3d 1092 [2009], quoting Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 599[2008]). Here, the defendant failed to submit any evidence demonstrating when the subject stepwas last inspected. Thus, the Supreme Court should have denied the defendant's motion forsummary judgment dismissing the complaint without regard to the sufficiency of the plaintiff'sopposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).Dillon, J.P., Santucci, Florio and Hall, JJ., concur.