Davidson v Long Is. R.R. Co.
2004 NY Slip Op 02903 [6 AD3d 570]
April 19, 2004
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 30, 2004


Leonard Davidson, Respondent,
v
Long Island Rail Road Company, Appellant. (And a Third-Party Action.)

[*1]In an action to recover damages for personal injuries, the defendant Long Island Rail Road Company appeals from an order of the Supreme Court, Queens County (Grays, J.), dated March 17, 2003, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

On a motion for summary judgment dismissing the complaint based upon lack of notice of a dangerous condition, a defendant is required to make a prima facie showing affirmatively establishing the absence of notice as a matter of law (see Wood v Food Emporium, 267 AD2d 380 [1999]; Ostuni v East Rockaway Vil. Tavern, 238 AD2d 558 [1997]). Here, the defendant Long Island Rail Road Company failed to make the required showing. Thus, the Supreme Court properly denied its motion for summary judgment dismissing the complaint. Ritter, J.P., H. Miller, Goldstein and Mastro, JJ., concur.