CRUCETA v. FUNNEL EQUITIES INC (2005)

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated December 19, 2003, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiffs commenced this action to recover damages for personal injuries allegedly sustained by the plaintiff Juanita Cruceta when she tripped and fell on a cracked step in front of the building where she worked.

 In order to prove a prima facie case of negligence in a trip and fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition (see Goldman v. Waldbaum, Inc., 248 A.D.2d 436, 437, 669 N.Y.S.2d 669).   Assuming that the defendant was responsible for maintaining the area of the premises where the accident occurred, it established its prima facie entitlement to judgment as a matter of law by demonstrating that it neither created nor had actual or constructive notice of the existence of an allegedly dangerous condition (see Bongiorno v. Penske Auto. Ctr., 289 A.D.2d 520, 521, 735 N.Y.S.2d 617;  Goldman v. Waldbaum, Inc., supra ).   The plaintiffs, in opposition, failed to raise a triable issue of fact (see Ezzo v. 2102 Union Blvd., 278 A.D.2d 447, 717 N.Y.S.2d 922).   Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment.