Joe v. Upper Room Ministries, Inc.

88 A.D.3d 963, 931 N.Y.2d 658

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 2011
• Status: Published

Opinion

The plaintiff allegedly sustained injuries when he slipped and fell on ice in a parking lot owned by the defendant Upper Room Ministries, Inc. (hereinafter Upper Room).

The Supreme Court should have denied that branch of Upper Room’s motion which was for summary judgment dismissing the complaint insofar as asserted against it. In support of its motion, Upper Room submitted conflicting deposition testimony regarding the general condition of the parking lot at the time of the accident, and failed to submit evidence regarding when it or its agent last inspected the parking lot prior to the accident. Under the circumstances, Upper Room failed to establish, prima facie, that it did not have actual or constructive notice of the allegedly dangerous condition (see Baines v G&D Ventures, Inc., 64 AD3d 528, 529 [2009]; Taylor v Rochdale Vil., Inc., 60 AD3d 930, 931-932 [2009]). Since Upper Room failed to meet its initial burden as the movant, we need not review the sufficiency of the plaintiffs opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The plaintiffs remaining contention is being raised for the first time on appeal, and thus, is not properly before the Court. Rivera, J.R, Florio, Dickerson and Lott, JJ., concur.