By notice of motion filed on June 18, 2007, defendants Apex Technical Schools, Inc. (hereinafter ATS) and Breton International, Inc. (hereinafter BI) jointly move pursuant to CPLR § 3212 for an order granting summary judgment dismissing the complaint on the basis that they had no actual or constructive notice of the allegedly dangerous condition which caused Heriberto Oriol's injury and they neither caused nor created the condition. The plaintiffs oppose.

On September 7, 2005, plaintiffs commenced this action by filing a summons and verified complaint with the Kings County Clerk's office. Issue was joined by defendants' answer, dated October 14, 2005. On February 6, 2007, plaintiff filed a note of issue and certificate of readiness in accordance with 22 NYCRR 202.21. The complaint contains forty-two allegation of fact supporting Heriberto Oriol cause of action for personal injuries and his wife's derivative claim for the loss of his services, consortium and society.

The Pleadings

The complaint, as amplified by the bill of particulars, alleges the following. On June 28, 2004, at 8 a.m., Heriberto Oriol slipped and fell on water located on the sixth floor bathroom of the ATS. ATS is owned and managed by BI and is located at 635 Avenue of the Americas, New York, New York. Heriberto Oriol alleges that the dangerous water condition which caused his fall and resultant injuries was due to the defendants' negligence.

The defendants' answer, as amended, contains six affirmative defenses. The first defense is that plaintiff's injuries were caused in whole or in part by the plaintiff's own negligence. The second is that the court lacks personal jurisdiction over the defendants. The third is that the plaintiff was engaged in activity which he knew to be hazardous and the plaintiff assumed the risk inherent in such activity. The fourth is that the complaint fails to state a cause of action for which relief may be granted. The fifth is that if the defendants are found liable, such liability is less than 50% of the total liability of all persons who may be found liable, and therefore the defendants' liability shall be limited to their equitable share, pursuant to CPLR Article 16. The [*2]sixth is that any past or future costs or expenses incurred or to be incurred by the plaintiff for medical care, dental care, custodial care of rehabilitative services, loss of earnings or other economic loss, has been or will, with reasonable certainty, be replaced or indemnified in whole or in part from a collateral source as defined in Section 4545(c) of the New York Civil Practice Law and Rules.

Defendants' motion papers consist of an affirmation of their counsel, four annexed exhibits and a memorandum of law. Exhibit A contains the plaintiffs' summons and verified complaint, attorney's verification, and the defendants' answer.^[FN1] Exhibit B is the note of issue. Exhibit C is the transcript of Heriberto Oriol's deposition taken on August 21, 2006. Exhibit D is the certified transcript of the deposition of Clifton Regis, the maintenance supervisor of ATS, taken on August 21, 2006.

Plaintiffs' opposition papers consist of an affirmation of their counsel and four annexed exhibits. Exhibit A contains the plaintiffs' bill of particulars and attorney's verification. Exhibit B is the certified transcript of Heriberto Oriol and Irma Oriol's deposition taken on August 21, 2006. Exhibit C is an affidavit of Ian Muller, an eyewitness to the accident, sworn to on June 9, 2007. Exhibit D is an ATS accident report pertaining to the incident in question.

Defendants' reply consists of the affirmation of their counsel.

Heriberto Oriol's deposition set forth the following facts. On Monday, June 28, 2004, Heriberto Oriol was a student in attendance at ATS for an air-conditioning and refrigeration training program. At approximately 8:00 a.m., he went with his friend Ian Muller to the bathroom. While attempting to exit a stall in the sixth floor bathroom, he slipped and fell on water on the floor in the stall surrounding the area of the toilet and plumbing pipes. The following day he went to Brooklyn Hospital for treatment of his injuries. Among his injuries was a bleeding head wound that required stitches.

At the moment he fell, he did not know what caused him to slip, but when he got up and looked around him, he saw the water. He had observed water on the floor in the same location on the Friday just prior to his accident but did not mention it to the defendants at that time. The day following the accident, he completed a school accident report concerning the incident.

Ian Muller, a classmate of Mr. Oriol, stated in his affidavit that he was present in the men's bathroom at the time of the accident. He saw Mr. Oriol slip and fall while exiting a stall in the sixth floor bathroom. He helped Mr. Oriol stand up and observed a substantial amount of water on the floor of the bathroom in the area of the toilets and plumbing pipes. At the end of one of the segments of the refrigeration course, ATS gave Ian Muller a survey to rate numerous things at the school. Ian Muller stated in his response to the survey that there was always water leaking onto the floor in the stalls coming from the toilet and pipes on the sixth floor bathroom. He gave ATS his survey response sometime before Mr. Oriol's accident.

Clifton Regis, a maintenance supervisor for ATS, testified on behalf of the defendants. Mr. Regis stated that as part of his duties he was required to inspect the bathrooms every twenty [*3]minutes during the work day. On the date of the accident, his workday began at 9:30 am. He did not recall anyone advising that someone had fallen in the bathroom. Mr. Regis testified that

4 a.m., is the earliest time that maintenance worker would arrive at the location. At that time, they would open the school and clean the bathrooms in anticipation of the students who were expected to arrive at about 7:30 am. He testified that any complaints about the condition of the premises were supposed to be directed to the clerks at the student service department. The clerks were then supposed to forward the complaints to Mr. Coffee, the director of student services since 2004.

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). The burden is on the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Guiffirda v. Citibank, 100 NY2d 72 [2003]). Once the moving party has established entitlement to summary judgment, to defeat the motion, the opposing party must raise triable issues of fact (Gravina v. Wakschal, 255 AD2d 291 [2nd Dept., 1998]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the sufficiency of the opposing papers (Ayotte v. Gervasio, 186 AD2d 963 [3rd Dept. 1992]; citing Alvarez v. Prospect Hosp., supra., 68 NY2d 320 ).

"To prove a prima facie case of negligence in a slip and fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition" (Scott v, Beverly Hills Furniture, 30 AD3d 577,578 [2nd Dept 2006], citing Goldman v Waldbaum, 248 AD2d 436 [2nd Dept 1999]).

A defendant has constructive notice of a defect when the defect is visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected (Larsen v Congregation B'Nai Jeshurun of Staten Island, 29 AD3d 643 [2nd Dept 2006]). On the defendants' motion for summary judgment to dismiss the complaint based on lack of notice, the defendant is required to make a prima facie showing affirmatively establishing that he neither created nor had actual or constructive notice of the dangerous condition that caused plaintiff's accident (Mitchell v. Consolidated Edison, 27 AD3d 430 [2nd Dept 2006], citing Curzio v. Tancredi, 8 AD3d 608 [2nd Dept 2004]).

The defendants argue that the plaintiff has failed to establish that the defendants had either actual or constructive notice of the dangerous condition. The movants, citing Zukerman v. City of New York, 49 NY2d 557, contend that "the burden is on a party opposing a summary judgment motion to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests." However, such statement of law is incorrect because it is taken out of context and it does not apply to the case at bar. In Zukerman, the New York State Court of Appeals noted that "where the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action." Therefore, it is the moving party who 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. Only after the moving [*4]defendant has satisfied this threshold burden will the court examine the sufficiency of the plaintiff's opposition." (Joachim v. 1824 Church Avenue, Inc, 12 AD3d 409 [2nd Dept 2004]). In Zukerman, the court found that the moving party had met its initial burden and that the burden had shifted to the party opposing a summary judgment motion "to show facts sufficient to require trial of any issue of fact" (CPLR §3212, subd [b]).

Thus, it was not plaintiff's burden in opposing the motion for summary judgment to demonstrate, as defendants urge, that the defendants had actual or constructive notice of the unsafe condition. Rather, it was the responsibility of defendant to establish the absence of notice as a matter of law. In an attempt to do so, the defendants allege that Mr. Oriol cannot establish causation between the defendants conduct and his injury because he did not know what caused him to fall. Defendants contend that Mr. Oriol's claim that the defendants caused his injury is based on sheer speculation. However, the defendants' assertion is unsupported by the evidence on record. The plaintiff testified at his deposition that at the moment he fell he did not know what cause his foot to slip, but then he knew it was water because when he got up he looked around him and saw the water. The court is required to look at the facts in the light most favorable to the party opposing the motion for summary judgment and to accept as true the evidence presented by the non-moving party (Fleming v Graham, 34 AD3d 525, 526 [2nd Dept 2006]). Therefore, the defendants' claim that the plaintiff did not know what caused him to fall is incorrect.

Moreover, the defendants failed to present sufficient evidence to show that they had neither created nor had actual or constructive notice of the dangerous condition in the bathroom. The defendants did not offer testimony of anyone with personal knowledge of the bathroom's condition on the morning of the accident or the previous day. There was also no testimony offered from the maintenance worker who cleaned the bathroom prior to the accident to establish the absence of actual or constructive knowledge of the water condition. The defendants also did not provide the testimony of Mr. Coffee, the person in charge of the complaints department. Such evidence may have been probative in showing that the presence of excessive amounts of water on the accident date was not a recurring condition. Instead, the only evidence provided by the defendants was the deposition testimony of the Cliff Regis, who started working one and a half hour after the accident occurred. Mr. Regis only testified as to the general bathroom cleaning and maintenance practice that existed in the ATS and not as to what he actually observed or did prior to the accident.

Such evidence falls far short of satisfying the defendants' burden on its motion for summary judgment (see Joachim v. 1824 Church Avenue, Inc, 12 AD3d 409 [2nd Dept 2004]; compare McClarren v Price Chopper Supermarkets, 226 AD2d 982 [3rd Dept 1996], Iv denied 88 NY2d 811 [1996] and Maiorano v. Price Chopper Operating Co., 221 AD2d 698, 699 [3rd Dept 1995]. In the McClarren case, supra, defendants' proof establishing that the aisle where the plaintiff fell was inspected three to five minutes prior to the accident and found to be clean and dry met their initial burden. In the Maiorano case, supra, the defendant's proof that the area in which the plaintiff fell had been swept five to ten minutes prior to accident met their initial burden.

On this record, the defendants' motion papers have not shown, as they must in order to obtain summary judgment, that they neither created the dangerous condition nor had actual or constructive notice of the hazardous condition that caused the plaintiff's injury. Therefore, [*5]because the defendants failed to make a prima showing of their entitlement to dismissal, the court need not address the sufficiency of the opposing papers (Binette v. Infante, 38 AD3d 210 [1st Dept 2007]).

Therefore, the defendants' motion for summary judgment dismissing the complaint is denied.

The foregoing constitutes the decision and order of this Court.

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J.S.C.