APPLEGATE v. LONG ISLAND POWER AUTHORITY (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated May 14, 2007, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff, a highway maintenance worker, allegedly was injured when, while collecting debris from property owned by the defendant Keyspan Corporation (hereinafter Keyspan), which houses a facility owned and operated by Keyspan and the defendant Long Island Power Authority, she stepped on a utility cover which collapsed under her.

A defendant moving for summary judgment in a personal injury action has the burden of establishing that it did not create the defective condition or have actual or constructive notice of its existence (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;  McKeon v. Town of Oyster Bay, 292 A.D.2d 574, 575, 739 N.Y.S.2d 739).   To give rise to 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 to discover and remedy it (see Gordon v. American Museum of Natural History, 67 N.Y.2d at 837, 501 N.Y.S.2d 646, 492 N.E.2d 774).   When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed (see Lal v. Ching Po Ng, 33 A.D.3d 668, 823 N.Y.S.2d 429;  Curiale v. Sharrotts Woods, Inc., 9 A.D.3d 473, 475, 781 N.Y.S.2d 47).   Here, the defendants established their entitlement to judgment as a matter of law by demonstrating that they neither created nor had actual or constructive notice of the latent defect which caused the utility cover to collapse.   In opposition to the motion, the plaintiff failed to raise a triable issue of fact as to whether the defendants created or had actual or constructive notice of the condition that caused her fall (see Lal v. Ching Po Ng, 33 A.D.3d at 668, 823 N.Y.S.2d 429;  Curiale v. Sharrotts Woods, Inc., 9 A.D.3d at 475, 781 N.Y.S.2d 47;  McKeon v. Town of Oyster Bay, 292 A.D.2d at 575, 739 N.Y.S.2d 739).   Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging negligent maintenance of the premises.

The plaintiff's remaining contentions are without merit.