| Molloy v Waldbaum, Inc. |
| 2010 NY Slip Op 02931 [72 AD3d 659] |
| April 6, 2010 |
| Appellate Division, Second Department |
| Edward Molloy et al., Respondents, v Waldbaum, Inc.,Appellant. |
—[*1] Tinari, O'Connell, Osborn & Kaufman, LLP, Central Islip, N.Y. (Frank A. Tinari ofcounsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Suffolk County (Molia, J.), dated June 15, 2009, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
To demonstrate its entitlement to summary judgment in a slip-and-fall case, a defendantmust establish, prima facie, that it did not create the condition that allegedly caused the fall, anddid not have actual or constructive notice of that condition for a sufficient length of time toremedy it (see Gregg v Key FoodSupermarket, 50 AD3d 1093 [2008]). Here, the defendant failed to meet its burden inthis regard. The defendant failed to tender evidence sufficient to establish, prima facie, that itsemployees did not create the allegedly dangerous condition that caused the injured plaintiff toslip (see Tenkate v Tops Mkts.,LLC, 38 AD3d 987, 988-989 [2007]). The defendant also failed to tender evidencesufficient to establish, prima facie, that its employees lacked constructive notice of that condition(see Holub v Pathmark Stores, Inc.,66 AD3d 741, 742 [2009]; see alsoErikson v J.I.B. Realty Corp., 12 AD3d 344, 344-345 [2004]). Accordingly, theSupreme Court properly denied the defendant's motion for summary judgment dismissing thecomplaint, regardless of the sufficiency of the plaintiffs' opposition papers (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]). Covello, J.P., Florio, Eng andChambers, JJ., concur.