Rice v. Francis

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Golia, J.), dated November 29, 2001, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

It is well established that a landowner is under a duty to exercise reasonable care under the circumstances to maintain property in a safe condition (see Basso v Miller, 40 NY2d 233, 241). To establish a prima facie case of negligence, a plaintiff is required to prove that the defendant either created or had actual or constructive notice of the allegedly defective condition that caused the accident (see Gordon v American Museum of Natural History, 67 NY2d 836; Palumno v Cipriano, 265 AD2d 538).

The defendants failed to meet their initial burden of establishing their prima facie entitlement to summary judgment dismissing the complaint (see generally Alvarez v Prospect Hosp., 68 NY2d 320). The respective deposition testimony of the infant plaintiff and the plaintiff mother raised an issue of fact as to whether the defendants had notice of the defective condition that allegedly caused the accident, and the defendants did not negate this evidence. Accordingly, the Supreme Court erred in granting the defendants’ motion for summary judgment dismissing the complaint.

In light of our determination, we need not reach the parties’ remaining contentions. Altman, J.P., S. Miller, Adams and Cozier, JJ., concur.