Bailey v. Curry

Nov 21, 2003
Appeal No. 1
Versions:1 A.D.3d 1059
1 A.D.2d 1059
767 N.Y.S.2d 724
2003 N.Y. App. Div. LEXIS 12371

Appeal from an order of Supreme Court, Monroe County (Bergin, J.), entered July 10, 2002, which granted defendants’ motion seeking summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.

Memorandum: Supreme Court erred in granting defendants’ motion seeking summary judgment dismissing the complaint. Plaintiff commenced this action asserting a cause of action for negligence based on injuries sustained by her daughter when she slipped and fell in a school parking lot. Although defendants supported their motion with evidence that the parking lot was routinely inspected for dangerous conditions, they submitted no evidence establishing when such an inspection was last conducted (see Mancini v Quality Mkts., 256 AD2d 1177 [1998]). Defendants thus failed to establish as a matter of law that they lacked constructive notice of the alleged dangerous condition (see Pelow v Tri-Main Dev., 303 AD2d 940, 941 [2003]), i.e., that the condition did not “exist for a sufficient length of time prior to the accident to permit defendant[s’] employees to discover and remedy it” (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). The failure of defendants to meet their initial burden requires denial of the motion, regardless of the sufficiency of plaintiff’s opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Present—Pine, J.P, Wisner, Hurlbutt, Gorski and Lawton, JJ.