Opinion
2012-01-10
Cheryl JACKSON, respondent, v. JAMAICA FIRST PARKING, LLC, appellant, et al., defendant.
Friedman Harfenist Kraut & Perlstein, LLP, Lake Success, N.Y. (Steven Jay Harfenist and Heather L. Smar of counsel), for appellant. Jacoby & Meyers, LLP (Finkelstein & Partners LLP, Newburgh, N.Y. [Marie M. DuSault], of counsel), for respondent.
Friedman Harfenist Kraut & Perlstein, LLP, Lake Success, N.Y. (Steven Jay Harfenist and Heather L. Smar of counsel), for appellant. Jacoby & Meyers, LLP (Finkelstein & Partners LLP, Newburgh, N.Y. [Marie M. DuSault], of counsel), for respondent.
ANITA R. FLORIO, J.P., ARIEL E. BELEN, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.
In an action to recover damages for personal injuries, the defendant Jamaica First Parking, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), entered February 25, 2011, as denied those branches of its motion which were for summary judgment dismissing the complaint insofar as asserted against it on the grounds that the alleged defect was trivial as a matter of law and that it did not create the alleged defect or have actual or constructive notice thereof.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Contrary to the contention of the defendant Jamaica First Parking, LLC (hereinafter the appellant), the evidence it submitted in support of its motion for summary judgment dismissing the complaint insofar as asserted against it, including deposition testimony and photographs, failed to establish, prima facie, that the alleged defect was trivial and, therefore, not actionable ( see Lagrasta v. Town of Oyster Bay, 88 A.D.3d 658, 930 N.Y.S.2d 254; Araujo v. City of New York, 84 A.D.3d 993, 922 N.Y.S.2d 806; Bolloli v. Waldbaum, Inc., 71 A.D.3d 618, 619, 896 N.Y.S.2d 400; DeLaRosa v. City of New York, 61 A.D.3d 813, 814, 877 N.Y.S.2d 439; Portanova v. Kantlis, 39 A.D.3d 731, 833 N.Y.S.2d 652; cf. Fisher v. JRMR Realty Corp., 63 A.D.3d 677, 678, 880 N.Y.S.2d 187).
Furthermore, “[a] defendant who moves for summary judgment in a trip-and-fall case has the initial burden of making a prima facie showing that it neither created the alleged hazardous condition, nor had actual or constructive notice of its existence for a length of time sufficient to discover and remedy it” ( Arzola v. Boston Props. Ltd. Partnership, 63 A.D.3d 655, 656, 880 N.Y.S.2d 352; see Pryzywalny v. New York City Tr. Auth., 69 A.D.3d 598, 598, 892 N.Y.S.2d 181). Here, the appellant failed to establish, prima facie, that it lacked constructive notice of the existence of the alleged hazard, as the deposition testimony of an employee of its affiliated corporation upon which it relies merely referred to general inspection practices of the premises in question and provided no evidence as to when the sidewalk at issue was last inspected prior to the accident ( see Goodyear v. Putnam/Northern Westchester Bd. of Coop. Educ. Servs., 86 A.D.3d 551, 552, 927 N.Y.S.2d 373; Arzola v. Boston Props. Ltd. Partnership, 63 A.D.3d 655, 880 N.Y.S.2d 352; Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 599, 869 N.Y.S.2d 222).
In light of the appellant's failure to meet its prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition to the appellant's motion were sufficient to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).
Accordingly, the Supreme Court properly denied those branches of the appellant's motion which were for summary judgment dismissing the complaint insofar as asserted against it on the grounds that the alleged defect was trivial as a matter of law and that it did not create the alleged defect or have actual or constructive notice thereof.