RIVERA v. CITY OF NEW YORK (2000)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), dated July 9, 1999, which denied their motion to direct the defendants to provide discovery and for leave to file a note of issue, and granted the defendants' cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The infant plaintiff, Danny Rivera, allegedly was injured when he slipped and fell in the hallway of Seth Low Junior High School, a facility operated and maintained by the defendants.   He alleged that he fell due to a foreign substance, dirt, or debris in the hallway.

The defendants made a prima facie showing of entitlement to judgment as a matter of law (see, Bachrach v. Waldbaum, Inc., 261 A.D.2d 426, 689 N.Y.S.2d 531).   The burden then shifted to the plaintiffs to come forward with sufficient evidence to raise a triable issue of fact (see, Cellini v. Waldbaum, Inc., 262 A.D.2d 345, 691 N.Y.S.2d 569).   The plaintiffs, in opposition, failed to submit proof that the specific substance upon which the infant plaintiff allegedly slipped and fell was present in the hall for a sufficient length of time prior to the accident to permit the defendants' employees to discover and remedy the hazardous condition (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Padilla v. White Plains City School Dist., 266 A.D.2d 442, 698 N.Y.S.2d 529).

The requested discovery at issue does not relate to the length of time that the substance had been in the hall prior to the accident.   Thus, even if discovery had been directed by the court, the additional evidence would not have been sufficient to defeat the cross motion for summary judgment dismissing the complaint.

MEMORANDUM BY THE COURT.