Abati v. Tonawanda City School District

Appeal from an order of the Supreme Court, Erie County (Barbara Howe, J.), entered December 15, 2003. The order denied the motion of defendants Tonawanda City School District and Tonawanda City School District Board of Education for summary judgment dismissing the complaint against them in a personal injury action. It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing the complaint against defendants Tonawanda City School District and Tonawanda City School District Board of Education insofar as it alleges that they had actual notice of the alleged dangerous condition and as modified the order is affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages for injuries that he sustained when he slipped and fell on the stairs of an elementary school while making a delivery there. Supreme Court properly denied the motion of Tonawanda City School District and Tonawanda City School District Board of Education (defendants) for summary judgment dismissing the complaint against them insofar as it alleges that they had constructive notice of the alleged dangerous condition and/or created it. Defendants failed to meet their initial burden of establishing their entitlement to judgment as a matter of law with respect to those theories, and we therefore do not address the sufficiency of plaintiffs opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Gentile v University of Rochester Med. Ctr., 292 AD2d 874, 875 [2002]). We agree with defendants, however, that the court erred in denying their motion insofar as the complaint alleges that they had actual notice of the alleged dangerous condition. Defendants met their initial burden with respect to that theory, and plaintiff failed to raise an issue of fact (see Ranger v Byrne Dairy, 280 AD2d 946 [2001]; see also Gallagher v TDS Telecom, 294 AD2d 860 [2002]). We 963 therefore modify the order by granting the motion of defendants in part and dismissing the complaint against them insofar as it alleges that they had actual notice of the alleged dangerous condition. Present—Pigott, Jr., P.J., Green, Pine and Hurlbutt, JJ.