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

Appellate Division of the Supreme Court of the State of New York·Decided April 8, 2002·Published·Cited by 1 cases

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.

Free access — add to your briefcase to read the full text and ask questions with AI

—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.

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).

Pincite

293 A.D.2d 518 (Schafran v. Ocean Surf Apartment Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related