BELTRAN v. METROPOLITAN LIFE INSURANCE CO (1999)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Rappaport, J.), dated February 27, 1998, which denied its cross motion, inter alia, for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 The plaintiff allegedly sustained personal injuries when he slipped and fell in the defendant's building due to construction debris in a hallway.   In order to prove a prima facie case of negligence, the plaintiff was required to show that the defendant created the condition which caused the accident or that it had actual or constructive notice thereof (see, Dwoskin v. Burger King Corp., 249 A.D.2d 358, 671 N.Y.S.2d 494;  Bradish v. Tank Tech Corp., 216 A.D.2d 505, 506, 628 N.Y.S.2d 807;  Gaeta v. City of New York, 213 A.D.2d 509, 624 N.Y.S.2d 47).   If the defendant moves for summary judgment dismissing the complaint based upon lack of notice, the defendant is required to make a prima facie showing affirmatively establishing the absence of notice as a matter of law (see, Dwoskin v. Burger King Corp., supra;  Gordon v. Waldbaum, Inc., 231 A.D.2d 673, 647 N.Y.S.2d 996;  Colt v. Great Atl. & Pac. Tea Co., 209 A.D.2d 294, 618 N.Y.S.2d 721;  Padula v. Big V Supermarkets, 173 A.D.2d 1094, 570 N.Y.S.2d 850).   The defendant has failed to do so here (see, Di Ponzio v. Riordan, 89 N.Y.2d 578, 657 N.Y.S.2d 377, 679 N.E.2d 616).

MEMORANDUM DECISION.