Opinion
2002-01324
Submitted February 6, 2003.
March 3, 2003.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Floyd, J.), dated July 23, 2001, which granted the defendant's motion for summary judgment dismissing the complaint.
Charisse Colon, Coram, N.Y., appellant pro se.
Renny Wm. Way, PLLC, Jericho, N.Y. (Joanmarie T. Malley of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, HOWARD MILLER, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.
A defendant will not be liable for a dangerous or defective condition on its property "unless it created the condition, or had actual or constructive notice of its existence and a reasonable time to remedy the defect" (Goldin v. Riker, 273 A.D.2d 197). A defendant who has not created the condition and is seeking summary judgment dismissing the complaint based on the lack of notice must make a prima facie showing affirmatively establishing the absence of notice as a matter of law (see Goldin v. Riker, supra; Beltran v. Metropolitan Life Ins. Co., 259 A.D.2d 456).
The defendant failed to make a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., supra).
SANTUCCI, J.P., SMITH, H. MILLER and ADAMS, JJ., concur.