Vasta v. Home Depot

25 A.D.3d 690, 811 N.Y.S.2d 671

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 2006
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Harkavy, J), dated November 24, 2004, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the defendant’s motion for summary judgment. In order for the defendant to establish its prima facie entitlement to judgment as a matter of law, it needed to submit evidence that it neither created the condition which allegedly caused the plaintiff to slip and fall, nor had actual or constructive notice of the allegedly dangerous condition (see Bosman v Reckson FS Ltd. Partnership, 15 AD3d 517 [2005]; see also Simmons v Metropolitan Life Ins. Co., 84 NY2d 972, 973-974 [1994]; Cody v DiLorenzo, 304 AD2d 705 [2003]). The defendant failed in this respect (see Knee v Trump Vil. Constr. Corp., 15 AD3d 545 [2005]). Therefore, the burden never shifted to the plaintiff to produce evidentiary proof in admissible form sufficient to establish the existence of a triable issue of fact as to the creation of the condition, or notice thereof (see Bosman v Reckson FS Ltd. Partnership, supra; Karalic v City of New York, 307 AD2d 254, 255 [2003]).

In light of our determination, we do not reach the defendant’s remaining contentions. Cozier, J.P., Ritter, Rivera and Fisher, JJ., concur.