BIRNBAUM v. NEW YORK RACING ASSOCIATION INC (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Hart, J.), dated April 11, 2006, which granted the defendant's motion for summary judgment dismissing the complaint.   Justices McCarthy, Dickerson, and Eng have been substituted for Justices Adams, Goldstein, and Lunn (see 22 NYCRR 670.1 [c] ).

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

 “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” (Yioves v. T.J. Maxx, Inc., 29 A.D.3d 572, 572, 815 N.Y.S.2d 119;  see Britto v. Great Atl. & Pac. Tea Co., 21 A.D.3d 436, 799 N.Y.S.2d 828;  Joachim v. 1824 Church Avenue, 12 A.D.3d 409, 410, 784 N.Y.S.2d 157;  Stumacher v. Waldbaum, Inc., 274 A.D.2d 572, 716 N.Y.S.2d 573).   Only after the movant has satisfied this threshold burden will the court examine the sufficiency of the plaintiff's opposition (see Britto v. Great Atl. & Pac. Tea Co., 21 A.D.3d 436, 799 N.Y.S.2d 828;  Joachim v. 1824 Church Ave., 12 A.D.3d 409, 784 N.Y.S.2d 157).  “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the] defendant's employees to discover and remedy it” (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774).

 To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell (see Porco v. Marshalls Dept. Stores, 30 A.D.3d 284, 285, 817 N.Y.S.2d 268;  Feldmus v. Ryan Food Corp., 29 A.D.3d 940, 941, 818 N.Y.S.2d 98;   Yioves v. T.J. Maxx, Inc., 29 A.D.3d at 573, 815 N.Y.S.2d 119;  Britto v. Great Atl. & Pac. Tea Co., 21 A.D.3d at 437, 799 N.Y.S.2d 828;  Lorenzo v. Plitt Theatres, 267 A.D.2d 54, 56, 699 N.Y.S.2d 388).   The defendant failed to satisfy its initial burden.   The deposition testimony of the defendant's assistant cleaning manager merely referred to the subject racetrack's general daily cleaning practices.   The assistant cleaning manager tendered no evidence regarding any particularized or specific inspection or stair-cleaning procedure in the area of the plaintiff's fall on the date of the accident.

Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint regardless of the sufficiency of the plaintiff's opposition papers.