Schafran v. Ocean Surf Apartment Corp.

Appellate Division of the Supreme Court of New York

Schafran v. Ocean Surf Apartment Corp.

293 A.D.2d 518, 739 N.Y.S.2d 847, 741 N.Y.S.2d 550, 2002 N.Y. App. Div. LEXIS 3543

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 8, 2002

StatusPublished

Cited by1 cases

This text of 293 A.D.2d 518 (Schafran v. Ocean Surf Apartment Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Schafran v. Ocean Surf Apartment Corp., 293 A.D.2d 518, 739 N.Y.S.2d 847, 741 N.Y.S.2d 550, 2002 N.Y. App. Div. LEXIS 3543 (N.Y. Ct. App. 2002).

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Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Seidell, J.), entered January 4, 2001, which, upon the granting of the defendant’s motion to dismiss the complaint pursuant to CPLR 4401, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

To establish a prima facie case of negligence, the plaintiff must demonstrate either that the defendant created the dangerous or defective condition that caused the incident, or that he had actual or constructive notice of the condition (see Gordon v American Museum of Natural History, 67 NY2d 836; Dima v Breslin Realty, 240 AD2d 359, 360). “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, supra at 837, citing Negri v Stop & Shop, 65 NY2d 625, 626).

In the present case, the plaintiff failed to establish a prima facie case of negligence against the defendant. The plaintiff did not demonstrate that the defendant either created the dangerous condition or had actual or constructive notice of it. Accordingly, the Supreme Court properly granted the defendant’s motion to dismiss the complaint pursuant to CPLR 4401. Santucci, J.P., Feuerstein, S. Miller and Schmidt, JJ., concur.

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—In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Seidell, J.), entered January 4, 2001, which, upon the granting of the defendant’s motion to dismiss the complaint pursuant to CPLR 4401, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

To establish a prima facie case of negligence, the plaintiff must demonstrate either that the defendant created the dangerous or defective condition that caused the incident, or that he had actual or constructive notice of the condition (see Gordon v American Museum of Natural History, 67 NY2d 836; Dima v Breslin Realty, 240 AD2d 359, 360). “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, supra at 837, citing Negri v Stop & Shop, 65 NY2d 625, 626).

In the present case, the plaintiff failed to establish a prima facie case of negligence against the defendant. The plaintiff did not demonstrate that the defendant either created the dangerous condition or had actual or constructive notice of it. Accordingly, the Supreme Court properly granted the defendant’s motion to dismiss the complaint pursuant to CPLR 4401. Santucci, J.P., Feuerstein, S. Miller and Schmidt, JJ., concur.

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Bluebook (online)

293 A.D.2d 518, 739 N.Y.S.2d 847, 741 N.Y.S.2d 550, 2002 N.Y. App. Div. LEXIS 3543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schafran-v-ocean-surf-apartment-corp-nyappdiv-2002.

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