Davranov v. 470 Realty Associates, LLC

Appellate Division of the Supreme Court of New York

Davranov v. 470 Realty Associates, LLC

79 A.D.3d 697, 911 N.Y.S.2d 912

Appellate Division of the Supreme Court of the State of New York·Decided December 7, 2010·Published·Cited by 5 cases

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated July 15, 2009, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is denied.

In a slip-and-fall case, a defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the alleged hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Edwards v Great Atl. & Pac. Tea Co., Inc., 71 AD3d 721 [2010]; Perlongo v Park City 3 & 4 Apts., Inc., 31 AD3d 409, 410 [2006]). A defendant’s burden cannot be [698] satisfied, merely by pointing to gaps in the plaintiffs case, as the defendant did here (see Picart v Brookhaven Country Day School, 37 AD3d 798, 799 [2007]). Since the defendant failed to satisfy its initial burden of proof, it is unnecessary to analyze the sufficiency of the plaintiffs opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

Accordingly, the Supreme Court should have denied the defendant’s motion for summary judgment. Rivera, J.E, Dickerson, Lott and Roman, JJ., concur.

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated July 15, 2009, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is denied.

In a slip-and-fall case, a defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the alleged hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Edwards v Great Atl. & Pac. Tea Co., Inc., 71 AD3d 721 [2010]; Perlongo v Park City 3 & 4 Apts., Inc., 31 AD3d 409, 410 [2006]). A defendant’s burden cannot be [698] satisfied, merely by pointing to gaps in the plaintiffs case, as the defendant did here (see Picart v Brookhaven Country Day School, 37 AD3d 798, 799 [2007]). Since the defendant failed to satisfy its initial burden of proof, it is unnecessary to analyze the sufficiency of the plaintiffs opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

Accordingly, the Supreme Court should have denied the defendant’s motion for summary judgment. Rivera, J.E, Dickerson, Lott and Roman, JJ., concur.

Davranov v. 470 Realty Associates, LLC, 79 A.D.3d 697, 911 N.Y.S.2d 912 (N.Y. Ct. App. 2010).

Pincite

79 A.D.3d 697 (Davranov v. 470 Realty Associates, LLC) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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