GOLDENFELD v. EURO COMFORT FURNITURE INC (2008)

In an action to recover damages for personal injuries, the defendant Euro Comfort Furniture, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated January 26, 2007, as denied that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In a premises liability case, a defendant moving for summary judgment has the initial burden of establishing that it did not create the defective condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Solomon v. Loszynski, 21 A.D.3d 366, 366-367, 800 N.Y.S.2d 46;  McKeon v. Town of Oyster Bay, 292 A.D.2d 574, 575, 739 N.Y.S.2d 739;  Abrams v. Powerhouse Gym Merrick, 284 A.D.2d 487, 727 N.Y.S.2d 135).   Only after the defendant has satisfied this threshold burden will the court examine the sufficiency of the plaintiff's opposition (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Sheehan v. J.J. Stevens & Co., Inc., 39 A.D.3d 622, 622-623, 833 N.Y.S.2d 237;  Joachim v. 1824 Church Ave., Inc., 12 A.D.3d 409, 410, 784 N.Y.S.2d 157).   Here, the defendant Euro Comfort Furniture, Inc. (hereinafter Euro), failed to submit evidence sufficient to establish, prima facie, that the area by the accident site was adequately lit (see Kempter v. Horton, 33 A.D.3d 868, 869, 824 N.Y.S.2d 308;  Miner v. Northport Yacht Club, 15 A.D.3d 362, 790 N.Y.S.2d 46), and was otherwise in a safe condition on the day of the accident.   Since Euro failed to meet its initial burden of establishing that it did not create a defective condition, we need not review the sufficiency of the plaintiff's opposition.