| Drouillard v Smarr |
| 2016 NY Slip Op 01290 |
| Decided on February 24, 2016 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on February 24, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
JOHN M. LEVENTHAL
SANDRA L. SGROI
SYLVIA O. HINDS-RADIX, JJ.
2015-06511
(Index No. 13399/13)
v
Audrey Smarr, et al., appellants.
Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Marshall D. Sweetbaum], of counsel), for appellants.
Friedman, Levy, Goldfarb & Green, P.C., New York, NY (Charles E. Green, Andrew J. Windman, and Ira Goldfarb of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (King, J.), dated May 13, 2015, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff Alberte Drouillard (hereinafter the injured plaintiff) allegedly slipped and fell on water inside the basement of certain real property in Brooklyn owned by the defendant Audrey Smarr. Thereafter, the injured plaintiff, and her husband suing derivatively, commenced this action against the defendants, inter alia, to recover damages for personal injuries. The defendants moved for summary judgment dismissing the complaint, and the Supreme Court denied the motion. The defendants appeal.
The defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law on the ground that the injured plaintiff was unable to identify the cause of her fall (see Pol v Gjonbalaj, 125 AD3d 955, 956). Moreover, the defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly hazardous condition (see Bruni v Macy's Corporate Servs., Inc., 134 AD3d 870, 871; Milorava v Lord & Taylor Holdings, LLC, 133 AD3d 724, 725; Bergin v Golshani, 130 AD3d 767, 769; Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598-599), or that they did not create the allegedly hazardous condition (see Garcia-Monsalve v Wellington Leasing, L.P., 123 AD3d 1085, 1087; Pechman v Vista at Kingsgate Section II, 97 AD3d 732, 734). In light of the defendants' failure to meet their initial burden, the sufficiency of the plaintiffs' opposition papers need not be considered (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).
Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.
RIVERA, J.P., LEVENTHAL, SGROI and HINDS-RADIX, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court