GILLIAM v. WHITE CASTLE (2004)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated November 19, 2003, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendant established its prima facie entitlement to judgment as a matter of law through evidence that it neither created the condition that allegedly caused the plaintiff to fall, nor had actual or constructive knowledge thereof (see Galietta v. New York Sports Club, 4 A.D.3d 449, 450, 771 N.Y.S.2d 695).   In opposition, the plaintiff failed to raise a triable issue of fact (see Pizarro v. Grenadier Realty Corp., 5 A.D.3d 652, 774 N.Y.S.2d 733).   The plaintiff's cousin, who was with her when the accident occurred, stated in an affidavit that, as the plaintiff was leaving the defendant's restaurant, she slipped and fell on some refuse located on the steps just outside the door.   Such evidence was insufficient to raise a triable issue of fact as to whether the defendant created the condition or had actual notice of it.   Moreover, in the absence of proof as to how long the condition existed, there was no evidence to permit an inference that the defendant had constructive notice of it.   Therefore, the Supreme Court erred in denying the defendant's motion for summary judgment (see Stone v. Long Is. Jewish Med. Ctr., 302 A.D.2d 376, 377, 754 N.Y.S.2d 352;  McDuffie v. Fleet Fin. Group, 269 A.D.2d 575, 703 N.Y.S.2d 510).