VASTA v. HOME DEPOT (2006)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Harkavy, J.), dated November 24, 2004, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 The Supreme Court properly denied the defendant's motion for summary judgment.   In order for the defendant to establish its prima facie entitlement to judgment as a matter of law, it needed to submit evidence that it neither created the condition which allegedly caused the plaintiff to slip and fall, nor had actual or constructive notice of the allegedly dangerous condition (see Bosman v. Reckson FS Ltd. Partnership, 15 A.D.3d 517, 790 N.Y.S.2d 201;  see also Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972, 973-974, 622 N.Y.S.2d 496, 646 N.E.2d 798;  Cody v. DiLorenzo, 304 A.D.2d 705, 757 N.Y.S.2d 789).   The defendant failed in this respect (see Knee v. Trump Vil. Constr. Corp., 15 A.D.3d 545, 791 N.Y.S.2d 576).   Therefore, the burden never shifted to the plaintiff to produce evidentiary proof in admissible form sufficient to establish the existence of a triable issue of fact as to the creation of the condition, or notice thereof (see Bosman v. Reckson FS Ltd. Partnership, supra;  Karalic v. City of New York, 307 A.D.2d 254, 255, 762 N.Y.S.2d 271).

In light of our determination, we do not reach the defendant's remaining contentions.