Pryzywalny v New York City Tr. Auth.
2010 NY Slip Op 00125 [69 AD3d 598]
January 5, 2010
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 10, 2010

Eugeniusz Pryzywalny, Appellant,
New York City Transit Authority, Respondent.

[*1] Dinkes & Schwitzer, P.C., New York, N.Y. (Beth Diamond of counsel), for appellant.

Wallace D. Gossett, Brooklyn, N.Y. (Anita Isola of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Rothenberg, J.), dated November 21, 2008, which granted the defendant's motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment is denied.

On December 20, 2001, the plaintiff allegedly was injured when he tripped on a defective step at the 59th Street subway station in Brooklyn.

A defendant owner or entity who is responsible for maintaining a premises who moves for summary judgment in a slip-and-fall or trip-and-fall case involving the property has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655 [2009]; see also Bruk v Razag, Inc., 60 AD3d 715 [2009]). To provide constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant's employees to discover and remedy it (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). " 'To meet its initial 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' " (Braudy v Best Buy Co., Inc., 63 AD3d 1092 [2009], quoting Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 599 [2008]). Here, the defendant failed to submit any evidence demonstrating when the subject step was last inspected. Thus, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Dillon, J.P., Santucci, Florio and Hall, JJ., concur.