Majority
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Jamieson, J.),
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion which was for summary judgment dismissing the complaint is denied.
On July 31, 2013, the plaintiff was working on a mechanical system on the roof of the Galleria Mall in White Plains, which was owned and/or managed by the defendants. The plaintiff allegedly sustained personal injuries when, as he descended a small set of wooden stairs, one of the steps cracked while he was on it, and he jumped from the step to avoid falling. The plaintiff commenced this action alleging, inter alia, that the defendants negligently maintained the staircase. The defendants moved, inter alia, for summary judgment dismissing the complaint. The Supreme Court, among other things, granted that branch of the defendants’ motion, and the plaintiff appeals.
In a premises liability case, a defendant real property owner or a party in possession or control of real property who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence (see Kyte v Mid-Hudson Wendico, 131 AD3d 452 [2015]; Pampalone v FBE Van Dam, LLC, 123 AD3d 988 [2014]; Martino v Patmar Props., Inc., 123 AD3d 890 [2014]). A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it (see Gordon v American Museum of Natural History, 67 NY2d 836 , 837-838 [1986]). To meet its prima facie burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell (see Rong Wen Wu v Arniotes, 149 AD3d 786 [2017]; Birnbaum v New York Racing Assn., Inc., 57 AD3d 598 , 598-599 [2008]).
Here, while the evidence submitted in support of the subject branch of the defendants’ motion may have demonstrated, prima facie, that they did not create the alleged condition or have actual notice thereof, it failed to demonstrate, prima facie, that they did not have constructive notice of it. Indeed, the evidence submitted on their motion failed to demonstrate when the subject staircase was last inspected relative to the
Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint.
Chambers, J.P., Cohen, Barros and Christopher, JJ., concur.
Cases cited
- Kyte v. Mid-Hudson Wendico, Inc. 131 AD3d 452 p. 661
- Pampalone v. FBE Van Dam, LLC 123 AD3d 988 p. 661
- Martino v. Patmar Properties, Inc. 123 AD3d 890 p. 661
- Gordon v. American Museum of Natural History 67 NY2d 836 at 837-838 p. 661
- Rong Wen Wu v. Arniotes 149 AD3d 786 p. 661
- Birnbaum v. New York Racing Ass'n 57 AD3d 598 at 598-599 p. 661
- Torre v. Aspen Knolls Estates Home Owners Ass'n 150 AD3d 789 at 789 p. 662
- DeFelice v. Seakco Construction Co. 150 AD3d 677 at 678 p. 662
- Bruni v. Macy's Corporate Services, Inc. 134 AD3d 870 at 871 p. 662
- Pryzywalny v. New York City Transit Authority 69 AD3d 598 at 598 p. 662
- Winegrad v. New York University Medical Center 64 NY2d 851 at 853 p. 662