LESSEY v. NEW YORK CITY TRANSIT AUTHORITY (2008)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated May 22, 2007, which denied its motion, in effect, for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly slipped and fell on an icy condition on an exterior staircase connecting an elevated subway station to the ground level.   In this ensuing action to recover damages for personal injuries, following joinder of issue and certain discovery, the defendant moved, in effect, for summary judgment dismissing the complaint.   The Supreme Court denied the motion.   We affirm.

The defendant failed to make a prima facie showing that it neither created nor had actual or constructive notice of the allegedly defective condition on its premises (see Khamis v. CG Foods, Inc., 49 A.D.3d 606, 856 N.Y.S.2d 132;  Williams v. JP Morgan Chase & Co., 39 A.D.3d 852, 834 N.Y.S.2d 310;  see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).   Since the defendant failed to make the showing necessary for an award of summary judgment, it is unnecessary to consider the adequacy of the plaintiff's opposition papers (see Khamis v. CG Foods, Inc., 49 A.D.3d 606, 856 N.Y.S.2d 132).