KHAMIS v. CG FOODS INC (2008)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Taylor, J.), entered November 29, 2006, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is denied.

 The infant plaintiff allegedly sustained personal injuries when she fell through an open cellar door, in the sidewalk, leading to the basement of the store owned by the defendant.   The doors allegedly were flat on the ground, in the open position, without any safety or cautionary devices such as cones, tape, or other barricades around the opening.  “A property owner may be held liable for a dangerous or defective condition on the property if the owner created the condition or had actual or constructive notice of it” (Enamorado v. KHR Holding Co., LLC, 24 A.D.3d 411, 412, 805 N.Y.S.2d 114;  see Ogletree v. Rush Realty Assoc., LLC, 29 A.D.3d 875, 814 N.Y.S.2d 878).

 The defendant, as the proponent of the motion for summary judgment, had the initial burden of establishing its prima facie entitlement to judgment as a matter of law by tendering proof, in admissible form, sufficient to demonstrate the absence of any material issue of fact (see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Carbone v. Lakeside Deli & Pizza, Inc., 47 A.D.3d 744, 850 N.Y.S.2d 194;  Xu v. 688 Sixth Ave. Realty Co., 19 A.D.3d 687, 797 N.Y.S.2d 302).   The defendant failed to make a prima facie showing that it neither created nor had actual or constructive notice of the allegedly dangerous condition (see Soto-Lopez v. Board of Mgrs. of Crescent Tower Condominium, 44 A.D.3d 846, 843 N.Y.S.2d 444;  Marshall v. Jeffrey Mgt. Corp., 35 A.D.3d 399, 825 N.Y.S.2d 260;  Bosman v. Reckson FS Ltd. Partnership, 15 A.D.3d 517, 790 N.Y.S.2d 201).

As the defendant failed to make the prima facie showing necessary for an award of summary judgment, it is unnecessary to consider the adequacy of the plaintiffs' opposition papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Restrepo v. Rockland Corp., 38 A.D.3d 742, 832 N.Y.S.2d 272;  Wolff v. New York City Tr. Auth., 21 A.D.3d 956, 801 N.Y.S.2d 345).