| Cummins v New York Methodist Hosp. |
| 2011 NY Slip Op 05650 [85 AD3d 1082] |
| June 28, 2011 |
| Appellate Division, Second Department |
| Thomas Cummins, Appellant, v New York MethodistHospital, Respondent, et al., Defendants. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Richard E. Lerner,Patrick J. Lawless, and Judy C. Selmeci of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Steinhardt, J.), dated August 6, 2010, which granted themotion of the defendant New York Methodist Hospital for summary judgment dismissing thecomplaint insofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion for summaryjudgment dismissing the complaint insofar as asserted against the defendant New YorkMethodist Hospital is denied.
"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" (Molloy v Waldbaum,Inc., 72 AD3d 659, 659-660 [2010]; see Gregg v Key Food Supermarket, 50 AD3d 1093 [2008]; Musso v Macray Movers, Inc., 33AD3d 594, 595 [2006]). This burden cannot be satisfied merely by pointing to alleged gapsin the plaintiff's case (see Edwards vGreat Atl. & Pac. Tea Co., Inc., 71 AD3d 721 [2010]; Gregg v Key FoodSupermarket, 50 AD3d at 1094; Stroppel v Wal-Mart Stores, Inc., 53 AD3d 651, 653 [2008]).
Here, the defendant New York Methodist Hospital (hereinafter the hospital) failed toestablish, prima facie, that it did not have constructive notice of the alleged dangerous condition,as it failed to proffer any evidence as to when the subject area was last cleaned or inspectedbefore the plaintiff's fall, or that the condition existed for an insufficient length of time for thehospital to discover and remedy it (seeMcPhaul v Mutual of Am. Life Ins. Co., 81 AD3d 609, 610 [2011]; Zambri v Madison Sq. Garden, L.P., 73AD3d 1035 [2010]; Rodriguez vHudson View Assoc., LLC, 63 AD3d 1135, 1136 [2009]). Accordingly, the SupremeCourt should have denied the hospital's motion for summary judgment dismissing the complaintinsofar as asserted against it, regardless of the sufficiency of the plaintiff's opposition papers(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Babb v Marshalls of MA, Inc., 78AD3d 976, 977 [2010]). Dillon, J.P., Covello, Chambers and Roman, JJ., concur.