| Edwards v Great Atl. & Pac. Tea Co., Inc. |
| 2010 NY Slip Op 01914 [71 AD3d 721] |
| March 9, 2010 |
| Appellate Division, Second Department |
| Joanne Edwards et al., Respondents, v Great Atlantic &Pacific Tea Company, Inc., Doing Business as Waldbaums,Appellant. |
—[*1] Joseph B. Fruchter, Hauppauge, 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 (Pines, J.), dated October 30, 2008, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
In a slip-and-fall case, the defendant moving for summary judgment has the burden ofdemonstrating, prima facie, that it did not create the alleged hazardous condition or have actualor constructive notice of its existence for a sufficient length of time to discover and remedy it (see Gregg v Key Food Supermarket,50 AD3d 1093 [2008]; Perlongo vPark City 3 & 4 Apts., Inc., 31 AD3d 409 [2006]). A defendant who had actual noticeof a recurring dangerous condition can be charged with constructive notice of each specificreoccurrence of that condition (seeKohout v Molloy Coll., 61 AD3d 640 [2009]; Erikson v J.I.B. Realty Corp., 12 AD3d 344 [2004]; Sweeney vD & J Vending, 291 AD2d 443 [2002]). Here, the defendant failed to submit evidencesufficient to establish its entitlement to judgment as a matter of law. A defendant's burden cannotbe satisfied merely by pointing to gaps in the plaintiff's case, as the defendant does here (see Stroppel v Wal-Mart Stores, Inc.,53 AD3d 651 [2008]; Gregg v KeyFood Supermarket, 50 AD3d 1093 [2008]; Picart v Brookhaven Country Day School, 37 AD3d 798 [2007]).Since the defendant failed to meet its initial burden as the movant, there is no need to review thesufficiency of the plaintiffs' opposition papers (see Picart v Brookhaven Country Day School, 37 AD3d 798[2007]; Flynn v Fedcap RehabilitationServs., Inc., 31 AD3d 602 [2006]). Contrary to the defendant's contention, theclimatological data was improperly submitted for the first time with its reply papers (see Osborne v Zornberg, 16 AD3d643 [2005]).
Accordingly, the Supreme Court properly denied the defendant's motion for summaryjudgment dismissing the complaint. Dillon, J.P., Florio, Miller and Austin, JJ., concur.