JOACHIM v. 1824 CHURCH AVENUE INC (2004)

In an action to recover damages for personal injuries, etc., the defendant 1824 Church Avenue, Inc., d/b/a Chae Fruit and Vegetable, appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated November 7, 2003, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 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 (see Curzio v. Tancredi, 8 A.D.3d 608, 778 N.Y.S.2d 910;  Stumacher v. Waldbaum, Inc., 274 A.D.2d 572, 716 N.Y.S.2d 573;  Fox v. Kamal Corp., 271 A.D.2d 485, 706 N.Y.S.2d 142;  Goldman v. Waldbaum, Inc., 248 A.D.2d 436, 669 N.Y.S.2d 669;  cf. Rojas v. Supermarkets Gen. Corp., 238 A.D.2d 393, 656 N.Y.S.2d 346).   Only after the moving defendant 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, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Fox v. Kamal Corp., supra).

 The Supreme Court properly denied the appellant's motion for summary judgment.   Other than testimony that the floor was swept and mopped each day a half-hour before the closing of the appellant's store, the appellant had no schedule for maintaining the floor.   The employees were instructed to clean the floor any time it was necessary, but no specific employee was responsible for seeing that this was done.   The plaintiff Clara Joachim slipped and fell at about 10:30 A.M., approximately 2 1/212 hours after the store opened, but the appellant offered no evidence if or when the floor was last inspected or swept that day.   Accordingly, the appellant failed to satisfy its initial burden (see Fox v. Kamal Corp, supra;  Beltran v. Metropolitan Life Ins. Co., 259 A.D.2d 456, 457, 686 N.Y.S.2d 79;  Van Steenburg v. Great Atl. and Pac. Tea Co., 235 A.D.2d 1001, 652 N.Y.S.2d 893).