Ortiz v New York Palace Hotel (2013 NY Slip Op 51739(U))

Ortiz v New York Palace Hotel

2013 NY Slip Op 51739(U) [41 Misc 3d 130(A)]

Decided on October 8, 2013

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Jeannie Ortiz, Respondent, —

against

New York Palace Hotel, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered December 21, 2011. The order denied defendant's motion for summary judgment dismissing the complaint.

Plaintiff commenced this action in Supreme Court, Queens County, to recover for personal injuries sustained when she slipped and fell in front of a trash compactor located in defendant's loading dock area. The action was subsequently removed to the Civil Court, Queens County, pursuant to CPLR 325 (d). Thereafter, defendant moved for summary judgment dismissing the complaint on the grounds that it had not created the dangerous condition which had allegedly caused plaintiff's fall; that it had no actual or constructive notice of that condition; and that plaintiff's unauthorized entry into defendant's loading dock area, a violation of defendant's policy, was the sole proximate cause of the accident. The Civil Court denied defendant's motion.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In moving for summary judgment in this slip-and-fall case, defendant, as the owner of the premises in which plaintiff had fallen, had "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" (Rodriguez v White Plains Pub. Schools, 35 AD3d 704, 705 [2006]; see also Goldman v Waldbaum, Inc., 248 AD2d 436 [1998]). Defendant did not meet its initial burden because it failed to submit sufficient evidence to make a prima facie showing that its employees had not created the allegedly dangerous condition that had caused plaintiff to slip (see Molloy v Waldbaum, Inc., 72 AD3d 659, 659-660 [2010]). Nor did it submit sufficient evidence to make a prima facie showing that it had lacked constructive notice of that condition, in that it did not offer "evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598-599 [2008]; see Porco v Marshalls Dept. [*2]Stores, 30 AD3d 284 [2006]; Feldmus v Ryan Food Corp., 29 AD3d 940 [2006]).

Since defendant failed to satisfy its initial burden, the Civil Court properly denied defendant's motion for summary judgment. Accordingly, the order is affirmed.