Mei Xiao Guo v. Quong Big Realty Corp.

• Decision Date: 01 February 2011
• Parties: MEI XIAO GUO, respondent-appellant, v. QUONG BIG REALTY CORP., appellant-respondent.
• Court: New York Supreme Court — Appellate Division

916 N.Y.S.2d 155
81 A.D.3d 610

MEI XIAO GUO, respondent-appellant,
v.
QUONG BIG REALTY CORP., appellant-respondent.

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

Feb. 1, 2011.

916 N.Y.S.2d 155

Havkins Rosenfeld Ritzert & Varriale, LLP, White Plains, N.Y. (Tara C. Fappiano of counsel), for appellant-respondent.

916 N.Y.S.2d 156

Wade T. Morris (Kenneth J. Gorman, Esq., P.C., New York, N.Y., of counsel), for respondent-appellant.

ANITA R. FLORIO, J.P., RANDALL T. ENG, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ.

81 A.D.3d 610

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated January 27, 2010, as denied its motion for summary judgment dismissing the complaint, and the plaintiff cross-appeals from the same order.

ORDERED that the cross appeal is dismissed as abandoned ( see 22 NYCRR 670.8 [e] ); and it is further,

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition that allegedly

81 A.D.3d 611

caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it ( see Molloy v. Waldbaum, Inc., 72 A.D.3d 659, 660, 897 N.Y.S.2d 653; Musachio v. Smithtown Cent. School Dist., 68 A.D.3d 949, 892 N.Y.S.2d 123; Holub v. Pathmark Stores, Inc., 66 A.D.3d 741, 742, 887 N.Y.S.2d 215; Britto v. Great Atl. & Pac. Tea Co., Inc., 21 A.D.3d 436, 799 N.Y.S.2d 828). To meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall ( see Musachio v. Smithtown Cent. School Dist., 68 A.D.3d 949, 892 N.Y.S.2d 123; Holub v. Pathmark Stores, Inc., 66 A.D.3d at 742, 887 N.Y.S.2d 215; Britto v. Great Atl. & Pac. Tea Co., Inc., 21 A.D.3d at 437, 799 N.Y.S.2d 828).

Here, the defendant failed to sustain its initial burden of demonstrating that it did not have constructive notice of the alleged hazardous condition on the staircase of its building because the deposition testimony of its employee failed to establish when the staircase was last inspected or cleaned on the day of the plaintiff's...