Majority
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (M. Garson, J.), dated July 9, 2003, which denied its motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The defendant failed to satisfy its prima facie burden of demonstrating its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 , 324-325 [1986]), as it failed to establish the absence of notice of the allegedly defective condition as a matter of law (see Colon v Produce Warehouse Carle Place, 303 AD2d 354 [2003]). Accordingly, the defendant’s motion was properly denied without considering the sufficiency of the plaintiffs opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 , 853 [1985]; Mariaca-Olmos v Mizrhy, 226 AD2d 437 , 438 [1996]; Colon v Produce Warehouse Carle Place, supra). Smith, J.P., Crane, Mastro and Skelos, JJ., concur.
Cases cited
- Alvarez v. Prospect Hospital 68 NY2d 320 at 324-325 p. 633
- Colon v. Produce Warehouse Carle Place, Inc. 303 AD2d 354 p. 633
- Winegrad v. New York University Medical Center 64 NY2d 851 at 853 p. 633
- Mariaca-Olmos v. Mizrhy 226 AD2d 437 at 438 p. 633