Opinion
2014-07404, Index No. 19605/12.
02-04-2015
Chander BERI, appellant, v. CHUNG FAT SUPERMARKET, INC., respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Patterson & Sciarrino, LLP (Goldberg Segalla LLP, New York, N.Y. [Stewart G. Milch and Richard J. Ahn ], of counsel), for respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.
Patterson & Sciarrino, LLP (Goldberg Segalla LLP, New York, N.Y. [Stewart G. Milch and Richard J. Ahn ], of counsel), for respondent.
Opinion
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kitzes, J.), entered May 22, 2014, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence (see Minor v. 1265 Morrison, LLC, 96 A.D.3d 1024, 947 N.Y.S.2d 167 ; Alexander v. New York City Hous. Auth., 89 A.D.3d 969, 933 N.Y.S.2d 357 ; Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 869 N.Y.S.2d 222 ). Although the defendant presented evidence that it neither created, nor had actual notice of, the alleged condition, it failed to demonstrate that it did not have constructive notice of the condition, as the defendant failed to tender any evidence establishing when the accident area was inspected and cleaned prior to the accident (see Williams v. New York City Hous. Auth., 119 A.D.3d 857, 990 N.Y.S.2d 549 ). Accordingly, the defendant failed to establish its prima facie entitlement to judgment as a matter of law, and its motion for summary judgment should have been denied, regardless of the sufficiency of the plaintiff's papers in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
DILLON, J.P., CHAMBERS, AUSTIN and HINDS–RADIX, JJ., concur.