DeFALCO v. BJ WHOLESALE CLUB INC (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Rosengarten, J.), dated May 11, 2006, which granted that branch of the defendant's motion which was for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and that branch of the defendant's motion which was for summary judgment dismissing the complaint is denied.

 “ ‘A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing 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’ ” (Ulu v. ITT Sheraton Corp., 27 A.D.3d 554, 813 N.Y.S.2d 441, quoting Curtis v. Dayton Beach Park No. 1 Corp., 23 A.D.3d 511, 806 N.Y.S.2d 664;  see Roethgen v. AMF Babylon Lanes, 30 A.D.3d 398, 816 N.Y.S.2d 568;  Yioves v. T.J. Maxx, Inc., 29 A.D.3d 572, 815 N.Y.S.2d 119;  Daniels v. Brisbane Leasing Ltd. Partnership, 24 A.D.3d 409, 804 N.Y.S.2d 925).   Only after the movant 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;  Yioves v. T.J. Maxx, Inc., supra at 573, 815 N.Y.S.2d 119).

 Here, the defendant failed to make a prima facie showing that it was entitled to judgment as a matter of law on the ground that it had no notice of the condition which allegedly caused the plaintiff's fall.   This burden cannot be satisfied merely by pointing out gaps in the plaintiff's case (see Cox v. Huntington Quadrangle No. 1 Co., 35 A.D.3d 523, 826 N.Y.S.2d 638;  Pearson v. Parkside Ltd. Liab. Co., 27 A.D.3d 539, 810 N.Y.S.2d 357;  South v. K-Mart Corp., 24 A.D.3d 748, 807 N.Y.S.2d 133;  Mondello v. DiStefano, 16 A.D.3d 637, 638, 792 N.Y.S.2d 177;  Surdo v. Albany Collision Supply, Inc., 8 A.D.3d 655, 779 N.Y.S.2d 544;  O'Leary v. Bravo Hylan, LLC, 8 A.D.3d 542, 778 N.Y.S.2d 700).

Accordingly, the Supreme Court should have denied that branch of the defendant's motion which was for summary judgment dismissing the complaint.