Davranov v 470 Realty Assoc., LLC
2010 NY Slip Op 09101 [79 AD3d 697]
December 7, 2010
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 16, 2011

Arthur Davranov, Appellant,
470 Realty Associates, LLC, Respondent.

[*1] Sacco & Fillas, LLP, Whitestone, N.Y. (Lamont K. Rogers of counsel), for appellant.

Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein 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 (Knipel, J.), dated July 15, 2009, 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 dismissing the complaint is denied.

In a slip-and-fall case, a defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the alleged hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Edwards v Great Atl. & Pac. Tea Co., Inc., 71 AD3d 721 [2010]; Perlongo v Park City 3 & 4 Apts., Inc., 31 AD3d 409, 410 [2006]). A defendant's burden cannot be satisfied merely by pointing to gaps in the plaintiff's case, as the defendant did here (see Picart v Brookhaven Country Day School, 37 AD3d 798, 799 [2007]). Since the defendant failed to satisfy its initial burden of proof, it is unnecessary to analyze the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment. Rivera, J.P., Dickerson, Lott and Roman, JJ., concur.