| Gray v Lifetitz |
| 2011 NY Slip Op 03029 [83 AD3d 780] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Wanda Gray, Appellant, v Ellias Lifetitz et al.,Respondents, et al., Defendants. |
—[*1] Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Marcia K.Raicus of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Bayne, J.), dated April 13, 2009, which granted the motion ofthe defendants Ellias Lifetitz, 205 East 17th Street, LLC, Sicherman Management CompanyLLC, Sicherman Management Corp., Elliot Lipshitz, and EL Management Company, LLC, forsummary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed, on the law, with costs, and the respondents' motion forsummary judgment dismissing the complaint insofar as asserted against them is denied.
The plaintiff alleges that she slipped and fell on sawdust while descending an interiorstairway in an apartment building at 205 East 17th Street in Brooklyn. On their motion forsummary judgment dismissing the complaint insofar as asserted against them, the defendantsEllias Lifetitz, 205 East 17th Street, LLC, Sicherman Management Company LLC, SichermanManagement Corp., Elliot Lipshitz, and EL Management Company, LLC (hereinaftercollectively the defendants), had the initial burden of making a prima facie showing that they didnot create the condition on which the plaintiff slipped, and did not have actual or constructivenotice of that condition (see Granillo vToys "R" Us, Inc., 72 AD3d 1024 [2010]; Alston v Starrett City Assoc., 72 AD3d 711 [2010]). "To meet[their] initial burden on the issue of lack of constructive notice, the defendant[s] must offer someevidence as to when the area in question was last cleaned or inspected relative to the time whenthe plaintiff fell" (Birnbaum v NewYork Racing Assn., Inc., 57 AD3d 598, 598-599 [2008]; see Pryzywalny v New York City Tr.Auth., 69 AD3d 598 [2010]; Braudy v Best Buy Co., Inc., 63 AD3d 1092 [2009]; Arzola v Boston Props. Ltd.Partnership, 63 AD3d 655 [2009]).
The defendants offered no evidence to establish when the stairway in question was lastinspected or cleaned prior to the time when the plaintiff allegedly fell (see Alston v Starrett City Assoc., 72AD3d 711 [2010]; Pryzywalny vNew York City Tr. Auth., 69 AD3d 598 [2010]; Soto-Lopez v Board of Mgrs. of Crescent Tower Condominium, 44AD3d 846 [2007]; Marshall vJeffrey Mgt. Corp., 35 AD3d 399 [2006]). The defendants failed to make a prima facieshowing of their entitlement to judgment as a matter of law. Thus, the Supreme Court shouldhave denied their motion for summary judgment.[*2]
As the defendants failed to meet their initial burden, it isnot necessary to consider the sufficiency of the plaintiff's opposition papers (see Musachio v Smithtown Cent. SchoolDist., 68 AD3d 949 [2009]; Bruk v Razag, Inc., 60 AD3d 715 [2009]). Covello, J.P., Hall, Lottand Cohen, JJ., concur.