Carmen Wellington, Plaintiff-Appellant, v. LLC (2010)

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia K. Raicus of counsel), for Manmall, LLC and HRO Asset Management, LLC, respondents.

Eustace & Marquez, White Plains (Heath A. Bender of counsel), for Cushman & Wakefield, LLC, respondent.

Gallo Vitucci & Klar, New York (Kimberly A. Ricciardi of counsel), for Onesource Holdings, LLC, respondent.

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Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered January 12, 2009, which granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff alleges that she was injured when she slipped and fell on a drying, sticky brown substance on a staircase outside the food court of the Manhattan Mall. She testified at her deposition that she did not see the alleged sticky substance on the stairway before she fell.   Plaintiff's evidence was insufficient to show that defendants had actual notice of the allegedly dangerous condition of the stairway or that the condition had been visible and apparent for long enough to permit defendants to discover and remedy it, and, in opposing the motion, plaintiff did not identify any evidence tending to show either actual or constructive notice.

As previously stated by this Court, “[w]hile a defendant moving for summary judgment has the burden of demonstrating entitlement to dismissal as a matter of law, there is no need for a defendant to submit evidentiary materials establishing a lack of notice where the plaintiff failed to claim the existence of notice of the condition” (Frank v. Times Equities, 292 A.D.2d 186, 186 [2002] ).   In other words, a defendant is not required to prove lack of notice where the plaintiff has not pointed to any evidence of notice (see e.g. Crawford v. MRI Broadway Rental, 254 A.D.2d 68 [1998] ).   In this case, therefore, defendants' summary judgment motions were properly granted.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK