Mary Gubitosi, respondent, v. LLC (2011)

Argued-January 20, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Spinner, J.), entered March 25, 2010, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly injured herself while taking a tour of a house under construction that was to be purchased by her daughter.   She subsequently commenced this action against the seller, alleging, inter alia, that the defendant was negligent in guiding the plaintiff though the partially constructed premises without warning her of a step between the hallway of the first floor and the garage, and in failing to mark the step by a sign, change in color, or other device sufficient to alert her to the change in elevation.

The Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.   The defendant failed to make a prima facie showing of its entitlement to judgment as a matter of law (see Roros v. Oliva, 54 AD3d 398, 399-400;  Scher v. Stropoli, 7 AD3d 777;  Chafoulias v 240 E. 55th St. Tenants Corp., 141 A.D.2d 207, 208).   The defendant's failure to make such a showing required the denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).

PRUDENTI, P.J., RIVERA, LOTT and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court