Majority
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Reilly, J.), entered July 22, 2013, as granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of General Municipal Law § 205-e, and the defendants cross-appeal, as limited by their brief, from so much of the same order as denied that branch of their motion which was for summary judgment dismissing the cause of action alleging negligence. Application by the plaintiffs, in effect, to withdraw their appeal on the ground that it has been rendered academic.
Ordered that the application by the plaintiffs, in effect, to withdraw their appeal is granted, and the appeal by the plaintiffs is deemed withdrawn, without costs or disbursements (see Lincoln v Crystal Apts. Group, 5 AD3d 355 [2004]; see also Matter of Mastrangelo v State Council of Parks, 16 NY2d 540 [1965]; Matter of Mia M. [Karen M.], 114 AD3d 793 [2014]); and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
A defendant landowner moving for summary judgment in a slip-and-fall case has the initial burden of establishing that it did not create the alleged defect or have actual or constructive notice thereof (see Gordon v American Museum of Natural History, 67 NY2d 836 , 837 [1986]; Wachovsky v City of New York,
Here, the deposition testimony of the defendant Afshin Golshani established, prima facie, that the defendants did not create or have actual notice of the allegedly loose piece of slate on the slate stone landing which allegedly caused the plaintiff Patrick Bergin to fall (see Hines v City of New York, 43 AD3d 869 , 870 [2007]; Miccio v Bay Shore Union Free School Dist., 289 AD2d 542 [2001]). However, in the absence of any evidence as to when the defendants last inspected the landing before the accident (see Birnbaum v New York Racing Assn., Inc., 57 AD3d at 598-599 ), or that the allegedly loose piece of slate on the landing was a latent defect that could not have been discovered upon a reasonable inspection (cf. Hoffman v Brown, 109 AD3d at 792 ; McMahon v Gold, 78 AD3d at 910 ), the defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly loose piece of slate on the landing (see Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655 [2009]; Dooley v Dixon, 154 AD2d 331 [1989]).
In light of the defendants’ failure to meet their initial burden, the sufficiency of the plaintiffs’ opposition papers need not be considered (see Alvarez v Prospect Hosp., 68 NY2d 320 , 324 [1986]).
Accordingly, the Supreme Court properly denied that branch
Cases cited
- People v. Budner 16 NY2d 540 p. 767
- Gordon v. American Museum of Natural History 67 NY2d 836 at 837 p. 767
- Hoffman v. Brown 109 AD3d 791 p. 768
- Pryzywalny v. New York City Transit Authority 69 AD3d 598 at 598 p. 768
- Applegate v. Long Island Power Authority 53 AD3d 515 at 516 p. 768
- Spindell v. Town of Hempstead 92 AD3d 669 at 671 p. 768
- Birnbaum v. New York Racing Ass'n 57 AD3d 598 at 598-599 p. 768
- Minor v. 1265 Morrison, LLC 96 AD3d 1024 at 1025 p. 768
- Goodyear v. Putnam/Northern Westchester Board of Cooperative Educational Services 86 AD3d 551 at 552 p. 768
- Arzola v. Boston Properties Limited Partnership 63 AD3d 655 p. 768
- Miccio v. Bay Shore Union Free School District 289 AD2d 542 p. 768
- Dooley v. Dixon 154 AD2d 331 p. 768
- Alvarez v. Prospect Hospital 68 NY2d 320 at 324 p. 768