Palumno v. Cipriano

—In an action to recover damages for personal injuries, etc., the defendants appeal from a judgment of the Supreme Court, Richmond County (Maltese, J.), dated March 3, 1999, which, upon a jury verdict, inter alia, finding them to be 50% at fault in the happening of the accident, and upon the denial of their motion to dismiss the complaint for failure to prove a prima facie case, is in favor of the plaintiffs and against them in the principal sum of $55,000 (50% of $110,000). Ordered that the judgment is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed. The plaintiff Carmine Palumno injured his Achilles tendon when he tripped and fell on a plastic baseball bat on the steps [539] of the defendants’ premises. To establish a prima facie case of negligence, the plaintiffs had to demonstrate either that the defendants created the dangerous or defective condition which caused the accident, or that they had actual or constructive notice of the condition (see, Gordon v American Museum of Natural History, 67 NY2d 836; Dima v Breslin Realty, 240 AD2d 359). The plaintiffs failed to prove a prima facie case in this respect. Therefore, the Supreme Court should have granted the defendants’ motion, made at the close of testimony, to dismiss the complaint. Mangano, P. J., Ritter, Joy, McGinity and Smith, JJ., concur.