Ashton v. Chen

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Dutchess County (Hillery, J.), dated May 1, 2001, which denied their motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. Contrary to the defendants’ contention, their motion for summary judgment was properly denied since they failed to make out a prima facie case showing that they neither created nor [478] had actual or constructive notice of the condition complained of, or, in any event, that the condition was open and obvious (see Rivas v Waldbaums Supermarket, 247 AD2d 600; cf. Schmidt v Barstow Assoc., 276 AD2d 784; see generally Alvarez v Prospect Hosp., 68 NY2d 320). Prudenti, P.J., Florio, Schmidt and Mastro, JJ., concur.