Colon v. Produce Warehouse Carle Place, Inc.

303 A.D.2d 354, 755 N.Y.S.2d 654

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 3, 2003
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Floyd, J.), dated July 23, 2001, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

A defendant will not be liable for a dangerous or defective condition on its property “unless it created the condition, or had actual or constructive notice of its existence and a reasonable time to remedy the defect” (Goldin v Riker, 273 AD2d 197 [2000]). A defendant who has not created the condition and is seeking summary judgment dismissing the complaint based on the lack of notice must make a prima facie showing affirmatively establishing the absence of notice as a matter of law (see Goldin v Riker, supra; Beltran v Metropolitan Life Ins. Co., 259 AD2d 456 [1999]).

The defendant failed to make a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., supra). Santucci, J.P., Smith, H. Miller and Adams, JJ., concur.