Notaro v. Buffalo Waterfront Restaurant Corp.

Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied defendant’s motion for summary judgment. Although plaintiff will bear the burden at trial of proving that defendant created the allegedly dangerous condition of the stairs or had actual or constructive notice of it (see, Lowrey v Cumberland Farms, 162 AD2d 777, 778), on its motion for summary judgment defendant bore the burden of establishing its entitlement to judgment as a matter of law (see, Jordan v Musinger, 197 AD2d 889). Defendant failed to meet that burden (see, Jordan v Musinger, supra; cf., Yaroschak v Suffern Window Cleaning Co., 174 AD2d 887, 888; Katz v New York Hosp., 170 AD2d 345; Lowrey v Cumberland Farms, supra, at 778), and we therefore do not consider the sufficiency of plaintiff’s submissions in opposition to the motion (see, Ayotte v Gervasio, 81 NY2d 1062, 1063; Alvarez v Prospect Hosp., 68 NY2d 320, 324). (Appeal from Order of Supreme Court, Erie County, Gorski, J.—Summary Judgment.) Present—Green, J. P., Pine, Lawton, Boehm and Fallon, JJ.