| Zambri v Madison Sq. Garden, L.P. |
| 2010 NY Slip Op 04370 [73 AD3d 1035] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Karen A. Zambri, Respondent, v Madison Square Garden,L.P., Appellant. |
—[*1] Peter D. DiBona, P.C., Brooklyn, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Kramer, J.), dated October 21, 2009, which denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On September 26, 2002, the plaintiff attended a Rolling Stones Concert at Madison SquareGarden. At approximately 9:00 p.m., after leaving her seat and walking to the restroom, sheallegedly slipped and fell on beer which had spilled on the floor. In September 2005 the plaintiffcommenced this action. At her deposition, she testified, inter alia, that she did not see any beeron the floor before she fell, but that after she fell, her pants were wet and smelled like beer. Thedefendant's event supervisor, who was on duty the evening of September 26, 2002, testified,among other things, that he inspected the floor in the area of the plaintiff's fall "throughout thenight" and did not recall seeing any beer on the floor. The defendant's "Call Listing" documentcontained two entries for mopping that area, but both were made well after 9:00 p.m. TheSupreme Court denied the defendant's motion for summary judgment dismissing the complaint.We affirm.
" '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 YorkRacing Assn., Inc., 57 AD3d 598, 598 [2008], quoting Yioves v T. J. Maxx,Inc., 29 AD3d 572, 572 [2006]).
On the issue of constructive notice, the defendant failed to establish its prima facieentitlement to judgment as a matter of law, since it failed to proffer any evidence as to when thesubject area was last cleaned or inspected relative to the time when the plaintiff fell (seeBirnbaum v New York Racing Assn., Inc., 57 AD3d at 598-599). Accordingly, the SupremeCourt properly denied the defendant's motion for summary judgment dismissing the complaint,and there is no need to address the sufficiency of [*2]theplaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]; Pryzywalny v New YorkCity Tr. Auth., 69 AD3d 598, 599 [2010]).
The defendant's remaining contentions either are without merit or have been renderedacademic in light of our determination. Dillon, J.P., Santucci, Hall and Lott, JJ., concur.