Cruceta v. Funnel Equities, Inc.

18 A.D.3d 693, 795 N.Y.S.2d 728

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 2005
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated December 19, 2003, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiffs commenced this action to recover damages for personal injuries allegedly sustained by the plaintiff Juanita Cruceta when she tripped and fell on a cracked step in front of the building where she worked.

In order to prove a prima facie case of negligence in a trip and fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition (see Goldman v Waldbaum, Inc., 248 AD2d 436, 437 [1998]). Assuming that the defendant was responsible for maintaining the area of the premises where the accident occurred, it established its prima facie entitlement to judgment as a matter of law by demonstrating that it neither created nor had actual or constructive notice of the existence of an allegedly dangerous condition (see Bongiorno v Penske Auto. Ctr., 289 AD2d 520, 521 [2001]; Goldman v Waldbaum, Inc., supra). The plaintiffs, in opposition, failed to raise a triable issue of fact (see Ezzo v 2102 Union Blvd., 278 AD2d 447 [2000]). Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment. Adams, J.P., Krausman, Rivera and Fisher, JJ., concur.