Opinion
2003-08406.
Decided June 28, 2004.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Richmond County (Lebowitz, J.), dated August 8, 2003, which denied his motion for summary judgment dismissing the complaint.
McDonald, Carroll, Cohen Rayhill, New York, N.Y. (Robert F. McCarthy of counsel), for appellant.
John Z. Marangos, Staten Island, N.Y., for respondent.
Before: MYRIAM J. ALTMAN, J.P., GLORIA GOLDSTEIN, ROBERT W. SCHMIDT, BARRY A. COZIER, PETER B. SKELOS, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
To prove a prima facie case of negligence in a slip-and-fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition ( see Luciani v. Waldbaum, Inc., 304 A.D.2d 537; Goldman v. Waldbaum, Inc., 248 A.D.2d 436). Accordingly, on the defendant's motion, he was required to make a prima facie showing of entitlement to summary judgment by establishing that he neither created nor had actual or constructive notice of the condition ( see Luciani v. Waldbaum, Inc., supra). The evidence submitted by the defendant in the form of the parties' testimony at their examinations before trial failed to establish that the defendant did not create the condition. Therefore, the Supreme Court properly denied the motion.
ALTMAN, J.P., GOLDSTEIN, SCHMIDT, COZIER and SKELOS, JJ., concur.