Beltran v. Metropolitan Life Insurance

259 A.D.2d 456, 686 N.Y.S.2d 79, 1999 N.Y. App. Div. LEXIS 2033

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 1999
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Rappaport, J.), dated February 27, 1998, which denied its cross motion, inter alia, for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff allegedly sustained personal injuries when he slipped and fell in the defendant’s building due to construction debris in a hallway. In order to prove a prima facie case of negligence, the plaintiff was required to show that the defendant created the condition which caused the accident or that it had actual or constructive notice thereof (see, Dwoskin v Burger King Corp., 249 AD2d 358; Bradish v Tank Tech Corp., 216 AD2d 505, 506; Gaeta v City of New York, 213 AD2d 509). If the defendant moves for summary judgment dismissing the complaint based upon lack of notice, the defendant is required to make a prima facie showing affirmatively establishing the absence of notice as a matter of law (see, Dwoskin v Burger King Corp., supra; Gordon v Waldbaum, Inc., 231 AD2d 673; Colt v Great Atl. & Pac. Tea Co., 209 AD2d 294; Padula v Big V Supermarkets, 173 AD2d 1094). The defendant has failed to do so here (see, Di Ponzio v Riordan, 89 NY2d 578). Miller, J. P., Sullivan, Friedmann and Luciano, JJ., concur.