Opinion
No. 2022-02026 Index No. 616468/18
08-07-2024
Richard Kern, appellant, v. Iona College, respondent (and a third-party action).
Cassar Law Firm, P.C., Huntington, NY (Christopher J. Cassar of counsel), for appellant. Harrington, Ocko & Monk, LLP, White Plains, NY (Michael Flake of counsel), for respondent.
Cassar Law Firm, P.C., Huntington, NY (Christopher J. Cassar of counsel), for appellant.
Harrington, Ocko & Monk, LLP, White Plains, NY (Michael Flake of counsel), for respondent.
MARK C. DILLON, J.P. PAUL WOOTEN BARRY E. WARHIT LILLIAN WAN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (William J. Condon, J.), dated March 1, 2022. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On August 28, 2015, the plaintiff allegedly was injured when he tripped and fell in a hole on the East Hill Hall lawn area at the defendant, Iona College, while setting up an inflatable movie screen. The plaintiff thereafter commenced this action against the defendant to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint, arguing that it did not create the alleged dangerous condition or have actual or constructive notice of it. In an order dated March 1, 2022, the Supreme Court granted the defendant's motion. The plaintiff appeals.
"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 did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it" (Baez v Willow Wood Assoc., LP, 159 A.D.3d 785, 785; see Kuyenova v R & M Supermarket, 215 A.D.3d 940, 941; Morahan-Gick v Costco Wholesale Corp., 116 A.D.3d 747, 748). A defendant has constructive notice of a hazardous condition when the condition is visible and apparent and has existed for a sufficient length of time prior to the accident to afford the defendant a reasonable opportunity to discover and remedy it (see Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837-838). To meet its initial burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's accident (see Baez v Willow Wood Assoc., LP, 159 A.D.3d at 785; Giantomaso v T. Weiss Realty Corp., 142 A.D.3d 950, 951).
Here, the defendant established, prima facie, that it did not create the allegedly dangerous condition or have actual or constructive knowledge of its existence. In support of its motion, the defendant submitted, inter alia, maintenance records for August 26, 2015, the affidavit of its groundskeeper who averred that he inspected every part of the lawn area at issue that day and did not see any holes, and a transcript of the plaintiff's deposition testimony in which the plaintiff testified that he inspected the lawn area prior to setting up the movie screen and did not see any holes (see Loper v Stop & Shop Supermarket Co., LLC, 206 A.D.3d 641, 642; Morahan-Gick v Costco Wholesale Corp., 116 A.D.3d at 748). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.
DILLON, J.P., WOOTEN, WARHIT and WAN, JJ., concur.