Norse v Saratoga Harness Racing, Inc.

2011 NY Slip Op 00769

Decided on February 10, 2011

Appellate Division, Third Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 10, 2011
510417



Calendar Date: December 14, 2010
Before: Cardona, P.J., Malone Jr., Stein, McCarthy and Egan Jr., JJ.


Law Office of Theresa J. Puleo, Albany (Norah M.
Murphy of counsel), for appellant.
Wein & Frament, P.L.L.C., Latham (Paul H. Wein of
counsel), for respondent.

MEMORANDUM AND ORDER


Malone Jr., J.

Appeal from an order of the Supreme Court (Hall, J.), entered December 1, 2009 in Saratoga County, which denied defendant's motion for summary judgment dismissing the complaint.

Plaintiff commenced this action to recover damages for injuries that she sustained after she stumbled and fell in the vicinity of mosaic tiles on the floor located in the entrance to a building owned and operated by defendant. After discovery, defendant unsuccessfully moved for summary judgment dismissing the complaint. This appeal ensued, and we affirm.

To satisfy its initial burden on the summary judgment motion, defendant was required to demonstrate, as a matter of law, "that [it] maintained the property in question in a reasonably safe condition and that [it] neither created the allegedly dangerous condition existing thereon nor had actual or constructive notice thereof" (Richardson v Rotterdam Sq. Mall, 289 AD2d 679, 679 [2001]; see Hagin v Sears, Roebuck & Co., 61 AD3d 1264, 1264 [2009]). In support of its motion, defendant submitted photographs of the floor and the mosaic tiles and the deposition testimony of plaintiff and two of defendant's employees. While this evidence may have been sufficient to establish that defendant did not have actual or constructive notice of the allegedly dangerous condition, defendant offered no evidence to establish that it maintained its property in a reasonably safe manner. Notably lacking was evidence regarding defendant's routine, if any, with respect to its inspection and maintenance of the entrance and the mosaic tiles where plaintiff [*2]fell (compare Cerkowski v Price Chopper Operating Co., Inc., 68 AD3d 1382, 1383 [2009]). Nor did defendant present any evidence as to whether the mosaic tiles had been properly installed or inspected for safety (compare Raczes v Horne, 68 AD3d 1521, 1522 [2009]; Ennis-Short v Ostapeck, 68 AD3d 1399, 1400 [2009]). Accordingly, defendant's motion for summary judgment dismissing the complaint was properly denied.

To the extent not specifically addressed, defendant's remaining contentions have been considered and found to be without merit.

Stein, McCarthy and Egan Jr., JJ., concur; Cardona, P.J., not taking part.

ORDERED that the order is affirmed, with costs.