Opinion
2003-07132.
Decided March 1, 2004.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated July 30, 2003, which denied its motion for summary judgment dismissing the complaint.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis Fishlinger, Garden City, N.Y. (Christine Gasser of counsel), for appellant.
Siben Ferber, LLP, Hauppauge, N.Y. (Leonard G. Kapsalis of counsel), for respondents.
Before: ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, ROBERT W. SCHMIDT and SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
On January 5, 2001, at approximately 6:45 P.M., the plaintiff Michael Bluman, a high school junior and member of the John F. Kennedy High School varsity basketball team, allegedly was injured when he slipped and fell on a wet spot on the gym floor at Freeport High School, a school within the defendant's district. At the time of the accident, the injured plaintiff was doing warm-up drills with his team just prior to a scheduled varsity game.
"A defendant will not be liable for a dangerous or defective condition on its property unless it created the condition, or had actual or constructive notice of its existence" ( Goldin v. Riker, 273 A.D.2d 197). To establish constructive notice, a plaintiff must provide evidence that the condition was visible and apparent, and that it existed for a sufficient period of time to permit a defendant to discover and remedy it ( see Gordon v. American Museum of Natural History, 67 N.Y.2d 836; Negri v. Stop Shop, 65 N.Y.2d 625, 626; Lewis v. Metropolitan Transp. Auth., 64 N.Y.2d 670).
Here, the defendant made a prima facie demonstration of entitlement to judgment as a matter of law by demonstrating that it did not create or have notice of the alleged dangerous condition ( see Capra v. Waldbaum's Inc., 272 A.D.2d 497). The plaintiffs' opposition to the motion was insufficient to raise a triable issue of fact as to whether the defendant had constructive notice of the condition. Any finding that the alleged condition was visible and apparent for a sufficient length of time to be discovered and remedied by the defendant's employees would be mere speculation ( see Sarabia v. Hilaire Farm Nursing Home, 250 A.D.2d 586; Becker v. Waldbaum, Inc., 221 A.D.2d 396).
Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.
FLORIO, J.P., KRAUSMAN, SCHMIDT and TOWNES, JJ., concur.