Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered September 9, 2005. The order, insofar as appealed from as limited by the brief, denied a motion by defendants 200 Park Avenue LLC, MetLife Inc. and Insignia/ESG, Inc. for summary judgment upon their cross claim for common-law indemnification and to dismiss the complaint and all cross claims against them.

Order affirmed without costs.

In this action for personal injuries, plaintiff alleges that she fell when she slipped on spilled liquid that was on the floor of the lobby of the building at 200 Park Avenue in Manhattan, a building that was owned and managed by defendants 200 Park Avenue LLC (200 Park), MetLife Inc. (MetLife) and Insignia/ESG, Inc. (Insignia) and for which defendant One Source Hudson Shatz (One Source) was contracted to provide janitorial services. A motion by defendants 200 Park, Metlife and Insignia for summary judgment on their cross claim for common-law indemnification and to dismiss the complaint and all cross claims against them was denied, and this appeal ensued.

To be entitled to summary judgment in a slip and fall case, the defendant must show, as a matter of law, that it did not cause the condition or have actual or constructive notice thereof [*2](Scott v Beverly Hills Furniture, 30 AD3d 574 [2006]; Goldman v Waldbaum, Inc., 248 AD2d 436 [1998]). In the instant case, defendants 200 Park, MetLife and Insignia did not sustain their burden of showing lack of notice as a matter of law since the witnesses they produced for deposition did not adequately describe defendants' floor-cleaning routines, and did not address how often or when the lobby where plaintiff fell is checked or when it was last checked for spills before plaintiff fell (see Deluna-Cole v Tonali, Inc., 303 AD2d 186 [2003]). Accordingly, appellants' motion for summary judgment was properly denied. To the extent that appellants' motion sought common law indemnification from One Source, the court below properly determined that their right thereto was not established since it was not demonstrated that One Source had notice of the hazardous condition (see Correia v Professional Data Mgt., Inc., 259 AD2d 60, 65 [1999]). Accordingly, the order is affirmed.

Golia and Rios, JJ., concur.

Weston Patterson, J.P., concurs in a separate memorandum.Weston Patterson, J.P., concurs in the following memorandum:

While I concur with the majority opinion, I write separately to emphasize defendants' failure to demonstrate, prima facie, their lack of notice of the condition which caused plaintiff's fall. On appeal, defendants assert that plaintiff, among other things, submitted no proof that defendants were aware of the alleged condition. Defendants' argument, however, incorrectly shifts the burden in the first instance to the non-moving party.

A defendant seeking summary judgment in a slip-and-fall case bears the initial burden of establishing, as a matter of law, 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" (Gerbi v Tri-Mac Enterprises of Stony Brook, ___ AD3d ___, 2006 NY Slip Op 08921, *1 [2d Dept, Nov. 28, 2006]). In meeting this burden, a defendant must do more than generally allege that it lacked notice. Rather, a defendant must submit proof as to what condition the area in question was in within a reasonable time before the accident (see id.; see also Yioves v T.J. Maxx, Inc., 29 AD3d 572 [2d Dept 2006] [denying defendant's motion for summary judgment where defendant failed to submit evidence sufficient to demonstrate when the area in question was last inspected]; Valdez v Aramark Servs., Inc., 23 AD3d 639 [2d Dept 2005] [same]; Britto v Great Atl. & Pac. Tea Co., Inc., 21 AD3d 436 [2d Dept 2005] [same]).

Here, defendants' submissions fall short of sustaining this burden. As the majority notes, defendants proffered no evidence tending to establish when the lobby was last checked or how often it was checked (compare Ben-Aharon v New York City Saks, LLC, ___ Misc 3d ___, decided herewith [granting defendant summary judgment, where defendant submitted plaintiff's own testimony indicating that she took the steps every week and did not notice any defect in them prior to her fall]). In the absence of such proof, the court below properly denied defendants' motion for summary judgment.
Decision Date: February 28, 2007