Raynor v. Torres

248 A.D.2d 698, 670 N.Y.S.2d 774, 1998 N.Y. App. Div. LEXIS 3443

Opinion

—In an action to recover damages for personal injuries, etc., the defendant Suffolk County Water Authority appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Seidell, J.), dated April 10, 1997, as, upon reargument, adhered to a prior determination of the same court, dated December 16, 1996, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

As the proponent of a motion for summary judgment, the appellant had the initial burden of establishing that it neither created nor had actual or constructive notice of the allegedly dangerous condition which led to the accident causing the plaintiffs injuries (see, Edwards v Wal-Mart Stores, 243 AD2d 803; Pirrelli v Long Is. R. R., 226 AD2d 166). Upon our review of the record, we find that the appellant failed to meet its initial burden. In any event, we agree with the Supreme Court that the plaintiffs opposition papers raised an issue of fact as to prior notice.

Mangano, P. J., Miller, Pizzuto and Krausman, JJ., concur.