This is often ignored

CPLR 3212

Hecht v Saccoccio, 014 NY Slip Op 05628 [2nd Dept. 2014]

To demonstrate prima facie entitlement to judgment as a matter of law in a premises liability case, a defendant owner must establish that it did not create the condition that allegedly caused the fall or have actual or constructive notice of that condition (see Gordon v American Museum of Natural History, 67 NY2d 836, 837). Only after the defendant has satisfied his or her threshold burden will the court examine the sufficiency of the plaintiff's opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). On a defendant's motion for summary judgment, it is not the plaintiff's burden in opposing the motion to establish that the defendants had actual or constructive notice of the hazardous condition; rather, it is the defendant's burden to establish the lack of notice as a matter of law (see Giuffrida v Metro N. Commuter R.R. Co., 279 AD2d 403, 404). Thus, a defendant seeking summary judgment dismissing the complaint based on the lack of notice must establish, prima facie, the absence of notice (see Goldin v Riker, 273 AD2d 197, 198).


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