Rocco v. St. Matthew's Roman Catholic Church

265 A.D.2d 472, 696 N.Y.S.2d 703, 1999 N.Y. App. Div. LEXIS 10594

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 1999
• 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 (Doyle, J.), dated September 14, 1998, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

In this slip-and-fall action, in order to establish a prima facie case, the plaintiffs were required to present proof that the defendant created, or had actual or constructive notice of, the defective condition which allegedly caused the injured plaintiff to fall (see, Robinson v Lupo, 261 AD2d 525; Wauters v Shop Rite, 244 AD2d 404; see also, Piacquadio v Recine Realty Corp., 84 NY2d 967). To constitute constructive notice, “a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” (Gordon v American Museum of Natural History, 67 NY2d 836, 837; see also, Wauters v Shop Rite, supra). As there was no evidence in the instant case from which one could conclude that the defendant had actual or constructive notice of the wet stairs on which the injured plaintiff fell or that the defendant created the condition, the Supreme Court properly granted the defendant’s motion for summary judgment (see, Baer v Great Atl. & Pac. Tea Co., 264 AD2d 791; O’Rourke v Williamson, Picket, Gross, 260 AD2d 260; Alatief v New York City Tr. Auth., 256 AD2d 371; Lottie v Edwards-Knox Cent. School Dist., 235 AD2d 678; Rosario v New York City Tr. Auth., 215 AD2d 364; Stoerzinger v Big V Supermarkets, 188 AD2d 790). Joy, J. P., Friedmann, Schmidt and Smith, JJ., concur.