DeLEON v. WESTHAB INC (2009)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Liebowitz, J.), dated May 6, 2008, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion is granted.

 A defendant who moves for summary judgment in a slip-and-fall action has the initial burden of demonstrating that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Sloane v. Costco Wholesale Corp., 49 A.D.3d 522, 855 N.Y.S.2d 155;  Frazier v. City of New York, 47 A.D.3d 757, 758, 850 N.Y.S.2d 552).   Here, the defendant met this burden by submitting evidence that the alleged hazardous condition on the subject stairs had not been created by its employees, and that it had neither actual nor constructive notice of it (see Costello v. Zaidman, 58 A.D.3d 593, 871 N.Y.S.2d 370;  Cunningham v. Bay Shore Middle School, 55 A.D.3d 778, 779, 865 N.Y.S.2d 691).   In opposition, the plaintiff failed to raise a triable issue of fact.   Accordingly, the defendant's motion for summary judgment should have been granted.