Checo v 452-53rd St. Realty Corp.

Checo v 452-53rd St. Realty Corp. 2010 NY Slip Op 08524 [78 AD3d 880] November 16, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

Jose Checo, Respondent,
v
452-53rd St. Realty Corp., Appellant.

—[*1] Barry, McTiernan & Moore, New York, N.Y. (David H. Schultz and Suzanne M. Halbardier of counsel), for appellant. Gorayeb & Associates, P.C., New York, N.Y. (Roy A. Kuriloff of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated September 11, 2009, which denied that branch of its motion which was for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff commenced the instant action to recover damages for injuries he allegedly sustained when he slipped and fell as a result of a broken, downwardly-sloped stair at the top of a staircase in a building owned by the defendant. To demonstrate its entitlement to judgment as a matter of law, the defendant had to establish, prima facie, that its agents or employees neither created the allegedly defective condition that caused the accident, nor had actual or constructive notice of that condition for a sufficient length of time to discover and remedy it (see Pryzywalny v New York City Tr. Auth., 69 AD3d 598, 598-599 [2010]; Joseph v New York City Tr. Auth., 66 AD3d 842, 843 [2009]). However, the defendant failed to establish its prima facie entitlement to judgment as a matter of law (see Pryzywalny v New York City Tr. Auth., 69 AD3d at 598-599). Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]; Pryzywalny v New York City Tr. Auth., 69 AD3d at 599). Mastro, J.P., Covello, Dickerson and Roman, JJ., concur.