Checo v. 452-53rd St. Realty Corp.

78 A.D.3d 880, 910 N.Y.S.2d 681

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 2010
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated September 11, 2009, which denied that branch of its motion which was for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff commenced the instant action to recover damages for injuries he allegedly sustained when he slipped and fell as a result of a broken, downwardly-sloped stair at the top of a staircase in a building owned by the defendant. To demonstrate its entitlement to judgment as a matter of law, the defendant had to establish, prima facie, that its agents or employees neither created the allegedly defective condition that caused the accident, nor had actual or constructive notice of that condition for a sufficient length of time to discover and remedy it (see Pryzywalny v New York City Tr. Auth., 69 AD3d 598, 598-599 [2010]; Joseph v New York City Tr. Auth., 66 AD3d 842, 843 [2009]). However, the defendant failed to establish its prima facie entitlement to judgment as a matter of law (see Pryzywalny v New York City Tr. Auth., 69 AD3d at 598-599). Accordingly, the Supreme Court properly denied that branch of the defendant’s motion which was for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiffs opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]; Pryzywalny v New York City Tr. Auth., 69 AD3d at 599). Mastro, J.P., Covello, Dickerson and Roman, JJ., concur.