Golding v. Powell & Dempsey, Inc.
| Decision Date | 17 February 1998 |
| Parties | , 1998 N.Y. Slip Op. 1523 Michael R. GOLDING, etc., Respondent, v. POWELL & DEMPSEY, INC., d/b/a Reunion Coffee Shop, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ahmuty, Demers & McManus, Albertson (Frederick B. Simpson and Brendan T. Fitzpatrick, of counsel), for appellant.
Julien & Schlesinger, P.C., New York City (Michael S. Schlesinger, of counsel), for respondent.
Before ROSENBLATT, J.P., and SULLIVAN, JOY, ALTMAN and LUCIANO, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Silverman, J.), entered July 11, 1997, 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.
In order to establish a prima facie case of negligence, the plaintiff is required to prove that the defendant either created or had actual or constructive notice of the allegedly dangerous condition that caused his injuries (see, Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493, 646 N.E.2d 795; Capraro v. Staten Is. Hosp., 245 A.D.2d 256, 664 N.Y.S.2d 826; DeChirico v. Church of St. Clare, 241 A.D.2d 536, 663 N.Y.S.2d 996 ). "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, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774).
In the instant case, the defendant established that it neither created the allegedly dangerous condition, nor had actual or constructive notice of it. Since the plaintiff failed to offer any evidence to refute this prima facie showing, the defendant's motion for summary judgment dismissing the complaint should have been granted (see, Gordon v. American Museum of Natural History, supra; Capraro v. Staten Is. Hosp., supra; DeChirico v. Church of St. Clare, supra).
To continue reading
Request your trial
-
Pianforini v. Kelties Bum Steer
...84 N.Y.2d 967, 622 N.Y.S.2d 493, 646 N.E.2d 795; Albano v. City of New York, 250 A.D.2d 555, 672 N.Y.S.2d 413; Golding v. Powell & Dempsey, 247 A.D.2d 510, 669 N.Y.S.2d 323). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length ......
-
Gallagher v. Tds Telecom
...and/or created it (see Piacquadio v Recine Realty Corp., 84 N.Y.2d 967, 969; Hanley v Affronti, 278 A.D.2d 868, 869; Golding v Powell & Dempsey, 247 A.D.2d 510). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior......
-
Chiu v. Supermarkets General
...had actual or constructive notice of it (see, Bachrach v. Waldbaum, 261 A.D.2d 426; Goldman v. Waldbaum, 248 A.D.2d 436; Golding v. Powell & Dempsey, 247 A.D.2d 510). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant created the condition or ha......
-
Sciaretta v. Nassau County, 2008 NY Slip Op 32636(U) (N.Y. Sup. Ct. 9/22/2008)
...who occupies land where the occupier of the property had actual or constructive notice of the condition. See, Golding v. Powell & Dempsey, Inc., 247 A.D.2d 510 (2nd Dep't 1998). Thus, the mere fact that Ace may not have itself created the condition is not the only way by which it may be hel......