West v. DeJesus

306 A.D.2d 402, 760 N.Y.S.2d 885

Opinion

—In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (R. Rivera, J.), dated September 30, 2002, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

“[I]n order ‘[t]o prove a prima facie case of negligence in a slip and fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition’” (Goldman v Waldbaum, Inc., 248 AD2d 436, 437 [1998], quoting Bradish v Tank Tech Corp., 216 AD2d 505, 506 [1995]). Accordingly, on their motion, the defendants were required to establish as a matter of law they that did not cause the condition or have actual or constructive notice thereof (Goldman v Waldbaum, Inc., supra). The defendants met their burden. In her affidavit submitted in support of the motion, restaurant employee Tamiqua Carney averred that on the evening in question there were no reports or complaints of an oily substance on the walkway where the plaintiff fell.

The evidence submitted by the plaintiff in opposition to the motion failed to raise a triable issue of fact (see Goldman v Waldbaum, Inc., supra). Santucci, J.P., Smith, Luciano, Schmidt and Mastro, JJ., concur.