| Jackson v Jamaica First Parking, LLC |
| 2012 NY Slip Op 00182 [91 AD3d 602] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| Cheryl Jackson, Respondent, v Jamaica First Parking, LLC,Appellant, et al., Defendant. |
—[*1] Jacoby & Meyers, LLP (Finkelstein & Partners LLP, Newburgh, N.Y. [Marie M. DuSault],of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Jamaica First Parking,LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, QueensCounty (Flug, J.), entered February 25, 2011, as denied those branches of its motion which werefor summary judgment dismissing the complaint insofar as asserted against it on the grounds thatthe alleged defect was trivial as a matter of law and that it did not create the alleged defect orhave actual or constructive notice thereof.
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the contention of the defendant Jamaica First Parking, LLC (hereinafter theappellant), the evidence it submitted in support of its motion for summary judgment dismissingthe complaint insofar as asserted against it, including deposition testimony and photographs,failed to establish, prima facie, that the alleged defect was trivial and, therefore, not actionable(see Lagrasta v Town of Oyster Bay,88 AD3d 658 [2011]; Araujo v Cityof New York, 84 AD3d 993 [2011]; Bolloli v Waldbaum, Inc., 71 AD3d 618, 619 [2010]; DeLaRosa v City of New York, 61AD3d 813, 814 [2009]; Portanova vKantlis, 39 AD3d 731 [2007]; cf. Fisher v JRMR Realty Corp., 63 AD3d 677, 678 [2009]).
Furthermore, "[a] defendant who moves for summary judgment in a trip-and-fall case has theinitial burden of making a prima facie showing that it neither created the alleged hazardouscondition, nor had actual or constructive notice of its existence for a length of time sufficient todiscover and remedy it" (Arzola vBoston Props. Ltd. Partnership, 63 AD3d 655, 656 [2009]; see Pryzywalny v New York City Tr.Auth., 69 AD3d 598, 598 [2010]). Here, the appellant failed to establish, prima facie,that it lacked constructive notice of the existence of the alleged hazard, as the depositiontestimony of an employee of its affiliated corporation upon which it relies merely referred togeneral inspection practices of the premises in question and provided no evidence as to when thesidewalk at issue was last inspected prior to the accident (see Goodyear v Putnam/Northern Westchester Bd. of Coop. Educ.Servs., 86 AD3d 551, 552 [2011]; Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655 [2009]; Birnbaum v New York Racing Assn.,Inc., 57 AD3d 598, 599 [2008]).[*2]
In light of the appellant's failure to meet its prima facieburden, it is unnecessary to determine whether the papers submitted by the plaintiff in oppositionto the appellant's motion were sufficient to raise a triable issue of fact (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]).
Accordingly, the Supreme Court properly denied those branches of the appellant's motionwhich were for summary judgment dismissing the complaint insofar as asserted against it on thegrounds that the alleged defect was trivial as a matter of law and that it did not create the allegeddefect or have actual or constructive notice thereof. Florio, J.P., Belen, Roman and Sgroi, JJ.,concur.