| Tsekhanovskaya v Starrett City, Inc. |
| 2011 NY Slip Op 09311 [90 AD3d 909] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Roza Tsekhanovskaya, Appellant, v Starrett City, Inc., etal., Respondents. |
—[*1] Brody, Bernard & Branch, LLP, New York, N.Y. (Mary Ellen O'Brien and Tanya M. Branchof counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Solomon, J.), dated August 16, 2010, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
The plaintiff allegedly sustained personal injuries when she tripped and fell over stickslocated near a garbage chute in an apartment building. As a result, the plaintiff commenced thisaction against the defendants, who are the owners and managing agent of that building. Thedefendants moved for summary judgment dismissing the complaint, contending that they did notcreate the alleged hazardous condition or have actual or constructive notice of it. The SupremeCourt granted the motion. The plaintiff appeals. We reverse.
In a trip-and-fall case, a defendant moving for summary judgment has the initial burden ofmaking a prima facie showing that it neither created the hazardous condition nor had actual orconstructive notice of its existence for a sufficient length of time to discover and remedy it (see Leary v Leisure Glen Home OwnersAssn., Inc., 82 AD3d 1169 [2011]; Pryzywalny v New York City Tr. Auth., 69 AD3d 598 [2010]). "Tomeet its initial burden on the issue of . . . constructive notice, the defendant mustoffer some evidence as to when the area in question was last cleaned or inspected relative to thetime when the plaintiff fell" (Birnbaumv New York Racing Assn., Inc., 57 AD3d 598, 598-599 [2008]; see Mei Xiao Guo v Quong Big RealtyCorp., 81 AD3d 610 [2011]; Braudy v Best Buy Co., Inc., 63 AD3d 1092 [2009]). A movantcannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case (see Cummins v New York MethodistHosp., 85 AD3d 1082 [2011]).
Here, the defendants failed to establish, prima facie, that they did not have constructivenotice of the alleged dangerous condition, as they failed to proffer evidence demonstrating thatthe condition existed for an insufficient amount of time for them to discover and [*2]remedy it (id.; see Catanzaro v King Kullen GroceryCo., 194 AD2d 584 [1993]). Since the defendants failed to meet their initial burden as themovants, we need not review the sufficiency of the plaintiff's opposition papers (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]), and thus the defendants'motion for summary judgment dismissing the complaint should have been denied. Skelos, J.P.,Belen, Lott and Cohen, JJ., concur.