Valverde v. Great Expectations, LLC

126 A.D.3d 633, 7 N.Y.S.3d 71

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 31, 2015
• Docket: 14097 401377/12
• Status: Published

Opinions

Order, Supreme Court, New York County (Richard F. Braun, J.), entered March 21, 2014, which denied defendants Great Expectations, LLC and American Golf Corporation’s (defendants) motion for summary judgment dismissing the complaint, affirmed, without costs.

Defendants failed to make a prima facie showing that they neither created nor had actual or constructive notice of the alleged defective golf course path (see Tomaino v 209 E. 84th St. Corp., 72 AD3d 460, 460-461 [1st Dept 2010]). In particular, defendants failed to submit evidence that they regularly inspected the accident location, that they received no complaints prior to the incident regarding the complained-of conditions, and that they had no similar accidents at the subject location. Third-party defendant’s employee’s testimony that he was not aware of any complaints from anyone about the condition of the golf course or its carts does not establish that defendants lacked notice, because he was not defendants’ employee at the time of the accident. Moreover, defendants’ employee never testified regarding whether defendants had received complaints about the accident location or as to when the accident location was last inspected. Defendants’ expert’s opinions regarding the condition of the path lack probative value, because he never stated when he inspected the accident location or that the property has remained in the same condition since the accident (see Snauffer v 1177 Ave. of the Ams. LP, 78 AD3d 583 [1st Dept 2010]; Figueroa v Haven Plaza Hous. Dev. Fund Co., 247 AD2d 210, 210 [1st Dept 1998]). Defendants’ failure to make a prima facie showing of their entitlement to judgment as a matter of law requires denial of their motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Concur — Mazzarelli, J.P., Sweeny, Moskowitz and Manzanet-Daniels, JJ.