| Levine v Amverserve Assn., Inc. |
| 2012 NY Slip Op 01216 [92 AD3d 728] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Burton Levine, Appellant, v Amverserve Association, Inc.,et al., Respondents, et al., Defendant. |
—[*1] Epstein, Frankini & Grammatico, Woodbury, N.Y. (Michele A. Musarra of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Agate, J.), dated March 4, 2011, which granted the motionof the defendants Amverserve Association, Inc., and Metro Management & Development, Inc.,for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantsAmverserve Association, Inc., and Metro Management & Development, Inc., for summaryjudgment dismissing the complaint insofar as asserted against them is denied.
The plaintiff allegedly tripped and fell on a metal prong or protrusion from a metal plateaffixed to the floor of a parking garage maintained by the defendants Amverserve Association,Inc., and Metro Management & Development, Inc. (hereinafter together the defendants). At anexamination before trial, the defendants' witness, a manager who oversaw the maintenance of theparking garage, testified that the subject metal plate was supposed to be covered by an orangetubular cone, two feet tall, but the cone was absent at the time of the plaintiff's accident. Thedefendants moved for summary judgment dismissing the complaint insofar as asserted againstthem on the ground that they neither created nor had actual or constructive notice of the absenceof the orange cone. The Supreme Court granted the motion, holding that the defendants made aprima facie showing of entitlement to judgment as a matter of law, and the plaintiff, inopposition, failed to raise a triable issue of fact. The plaintiff appeals and we reverse.
"A defendant who moves for summary judgment in a trip-and-fall case has the initial burdenof making a prima facie showing that it neither created the alleged hazardous condition, nor hadactual or constructive notice of its existence for a length of time sufficient to discover andremedy it" (Arzola v Boston Props. Ltd.Partnership, 63 AD3d 655, 656 [2009]; see Jackson v Jamaica First Parking, LLC, 91 AD3d 602 [2d Dept2012]; Pryzywalny v New York City Tr.Auth., 69 AD3d 598 [2010]). "To meet its initial burden on the issue of lack ofconstructive notice, the defendant must offer some evidence as to when the area in question waslast cleaned or inspected relative to the time when the plaintiff fell" (Birnbaum v New YorkRacing Assn., Inc., 57 [*2]AD3d 598, 598-599 [2008];see Pryzywalny v New York City Tr. Auth., 69 AD3d at 599). Here, the defendants failedto establish, prima facie, that they lacked constructive notice of the existence of the allegedhazard, as the deposition testimony of their manager, upon which they relied, merely referred togeneral inspection practices of the parking garage and provided no evidence as to when the areain question was last inspected relative to the plaintiff's accident.
Accordingly, in light of the defendants' failure to meet their prima facie burden, the SupremeCourt should have denied their motion for summary judgment dismissing the complaint insofaras asserted against them, regardless of the sufficiency of the papers submitted by the plaintiff inopposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).Mastro, A.P.J., Angiolillo, Eng and Cohen, JJ., concur.