| Green v Albemarle, LLC |
| 2013 NY Slip Op 04777 [107 AD3d 948] |
| June 26, 2013 |
| Appellate Division, Second Department |
| Margete Green, Respondent, v Albemarle, LLC, etal., Appellants. |
—[*1] Monaco & Monaco, LLP, Brooklyn, N.Y. (Frank A. Delle Donne of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Kings County (Ruchelsman, J.), dated May 17, 2012, whichdenied their motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
A defendant in a trip-and-fall case who moves for summary judgment based on lackof notice has the initial burden of making a prima facie showing that it neither creatednor had actual notice of the alleged hazardous condition, and that it did not haveconstructive notice of the condition for a length of time sufficient to discover and remedyit (see Levine v AmverserveAssn., Inc., 92 AD3d 728 [2012]; Jackson v Jamaica First Parking, LLC, 91 AD3d 602[2012]; Arzola v Boston Props.Ltd. Partnership, 63 AD3d 655, 656 [2009]). "To meet its initial burden on theissue of lack of constructive notice, the defendant must offer some evidence as to whenthe area in question was last cleaned or inspected relative to the time when the plaintifffell" (Birnbaum v New YorkRacing Assn., Inc., 57 AD3d 598, 598-599 [2008]; see Levine vAmverserve Assn., Inc., 92 AD3d at 729; Pryzywalny v New York City Tr. Auth., 69 AD3d 598, 599[2010]).
Here, the defendants failed to establish, prima facie, that they lacked constructivenotice of the alleged condition, as the deposition testimony of the superintendent of thebuilding in which the plaintiff fell merely referred to his general inspection practices andprovided no evidence as to when the area in question was last inspected relative to theplaintiff's accident (see Levine v Amverserve Assn., Inc., 92 AD3d at 729).
Moreover, contrary to the defendants' contention, the evidence submitted in supportof their motion for summary judgment, including, inter alia, photographs of the allegeddefect that caused the plaintiff's fall, did not establish, prima facie, that the alleged defectwas trivial and, therefore, not actionable (see Trincere v County of Suffolk, 90NY2d 976, 977 [1997]; Lagrasta v Town of [*2]OysterBay, 88 AD3d 658, 659 [2011]; Araujo v City of New York, 84 AD3d 993, 994 [2011]; Bolloli v Waldbaum, Inc., 71AD3d 618, 619 [2010]; DeLaRosa v City of New York, 61 AD3d 813, 814[2009]). Mastro, J.P., Hall, Lott and Sgroi, JJ., concur.