SCHAFRAN v. PECONIC MANAGEMENT CORPORATION (2002)

In related actions to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Seidell, J.), entered January 19, 2001, which, upon the granting of the motion of Marvin Simms, the defendant in Action No. 2, to dismiss the complaint pursuant to CPLR 4401, and upon a jury verdict in favor of Peconic Management Corporation, the defendant in Action No. 1, dismissed the complaints.

ORDERED that the judgment is affirmed, with costs.

 To establish a prima facie case of negligence, the plaintiff must demonstrate either that the defendant created the dangerous or defective condition that caused the incident, or that he had actual or constructive notice of the condition (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Dima v. Breslin Realty, 240 A.D.2d 359, 360, 658 N.Y.S.2d 115).  “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 defendant's employees to discover and remedy it” (Gordon v. American Museum of Natural History, supra, at 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;  see Negri v. Stop & Shop, 65 N.Y.2d 625, 626, 491 N.Y.S.2d 151, 480 N.E.2d 740).

 The plaintiff failed to establish a prima facie case of negligence against the defendant Marvin Simms, the owner of the cooperative unit where the accident occurred.   The plaintiff failed to demonstrate that Simms either created the dangerous condition, or had actual or constructive notice of it.   Accordingly, the Supreme Court properly granted Simms's motion to dismiss the complaint at the close of the plaintiff's case.

The plaintiff's remaining contentions are either unpreserved for appellate review or without merit.