Levine v. Amverserve Ass'n, Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: WILLIAM F. MASTRO
• Citation: Levine v. Amverserve Ass'n, Inc., 92 A.D.3d 728, 938 N.Y.S.2d 593, 2012 N.Y. Slip Op. 1216 (N.Y. App. Div. 2012)
• Decision Date: 14 February 2012
• Parties: Burton LEVINE, appellant, v. AMVERSERVE ASSOCIATION, INC., et al., respondents, et al., defendant.

2012 N.Y. Slip Op. 01216

92 A.D.3d 728

938 N.Y.S.2d 593

Burton LEVINE, appellant,

v.AMVERSERVE ASSOCIATION, INC., et al., respondents, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 14, 2012.

Richard Becker, Brooklyn, N.Y., for appellant.

Epstein, Frankini & Grammatico, Woodbury, N.Y. (Michele A. Musarra of counsel), for respondents.

WILLIAM F. MASTRO, A.P.J., DANIEL D. ANGIOLILLO, RANDALL T. ENG and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Agate, J.), dated March 4, 2011, which granted the motion of the defendants Amverserve Association, Inc., and Metro Management & Development, Inc., for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Amverserve Association, Inc., and Metro Management & Development, Inc., for summary judgment dismissing the complaint insofar as asserted against them is denied.

The plaintiff allegedly tripped and fell on a metal prong or protrusion from a metal plate affixed to the floor of a parking garage maintained by the defendants Amverserve Association, Inc., and Metro Management & Development, Inc. (hereinafter together the defendants). At an examination before trial, the defendants' witness, a manager who oversaw the maintenance of the parking garage, testified that the subject metal plate was supposed to be covered by an orange tubular cone, two feet tall, but the cone was absent at the time of the plaintiff's accident. The defendants moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that they neither created nor had actual or constructive notice of the absence of the orange cone. The Supreme Court granted the motion, holding that the defendants made a prima facie showing of entitlement to judgment as a matter of law, and the plaintiff, in opposition, failed to raise a triable issue of fact. The plaintiff appeals and we reverse.

“A defendant who moves for summary judgment in a trip-and-fall case has the initial burden of making a prima facie showing that it neither created the alleged hazardous condition, nor had actual or constructive notice of its existence for a length of time sufficient to discover and remedy it” ( Arzola v. Boston Props. Ltd. Partnership, 63 A.D.3d 655, 656, 880...