Ryan v. MRO Northeast, Inc.

278 A.D.2d 401, 718 N.Y.S.2d 219, 2000 N.Y. App. Div. LEXIS 13246

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 2000
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Rockland County (Sherwood, J.), entered January 12, 2000, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

To establish a prima facie case of negligence in a slip and fall case, a plaintiff must demonstrate that the defendant created the condition which caused the accident, or that the defendant had actual or constructive notice of the condition. “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 the defendant’s employees to discover and remedy it” (Bachrach v Waldbaum, Inc., 261 AD2d 426; see, Goldman v Waldbaum, Inc., 248 AD2d 436; see also, Gordon v American Museum of Natural History, 67 NY2d 836). On a motion for summary judgment to dismiss the complaint based on lack of notice, the defendant is required to make a prima facie showing affirmatively establishing the absence of notice as a matter of law (see, Bachrach v Waldbaum, Inc., supra). The defendants met that burden. In opposition, the plaintiff submitted no proof, only speculation, that the defendants had notice of the condition. Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint. Bracken, J. P., Santucci, Altman and Florio, JJ., concur.