        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

408
CA 10-02067
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND GREEN, JJ.


CYNTHIA A. WEBB, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

SALVATION ARMY, DEFENDANT-APPELLANT.


BARTH SULLIVAN BEHR, BUFFALO (LAURENCE D. BEHR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

CELLINO & BARNES, P.C., BUFFALO (GREGORY V. PAJAK OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Frederick
J. Marshall, J.), entered July 16, 2010 in a personal injury action.
The order denied the motion of defendant for summary judgment
dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion in part and
dismissing the complaint insofar as it alleges that defendant was
negligent in failing to provide adequate lighting in the parking lot
and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when she fell in defendant’s parking lot after
stepping on a small boot of a doll. The boot measured 1.75 inches in
both height and width. According to plaintiff, the presence of the
doll boot in the parking lot constituted a dangerous condition of
which defendant knew or should have known, and the accident was also
caused by inadequate lighting in the parking lot. Defendant moved for
summary judgment dismissing the complaint on the ground that, because
“there is no proof of how long the tiny doll boot lay on the parking
lot surface,” defendant lacked actual or constructive notice of the
allegedly dangerous condition. Defendant further contended that the
lighting conditions of the parking lot did not cause plaintiff to fall
inasmuch as she admitted in her deposition testimony that she was
looking straight ahead when she stepped on the boot.

     We conclude that Supreme Court properly denied the motion for
summary judgment dismissing the complaint insofar as it alleges that
defendant lacked constructive notice of the allegedly dangerous
condition. We note at the outset that, at oral argument on the
motion, the court clarified that plaintiff was abandoning any issues
with respect to defendant’s alleged actual notice. “Where, as here,
                                 -2-                           408
                                                         CA 10-02067

only constructive notice is asserted, a defendant may meet its burden
of affirmatively demonstrating a lack of such notice by offering proof
of regularly recurring maintenance or inspection of the premises”
(Kropp v Corning, Inc., 69 AD3d 1211, 1212; see Babb v Marshalls of
MA, Inc., 78 AD3d 976; Braudy v Best Buy Co., Inc., 63 AD3d 1092). We
further note that defendant does not challenge the allegation that the
doll boot constituted a dangerous condition. Although defendant
submitted evidence that, pursuant to a general unwritten policy, the
manager in charge of the store at closing would inspect the parking
lot for debris, defendant failed to submit evidence establishing that
the general policy was followed on the night before plaintiff’s
accident (see Johnson v Panera, LLC, 59 AD3d 1118). Thus, defendant
failed to meet its initial burden of establishing as a matter of law
that the doll boot had not been in the parking lot for a sufficient
period of time to permit an employee to discover and remove it (see
id.; Cooper v Carmike Cinemas, Inc., 41 AD3d 1279; Mancini v Quality
Mkts., 256 AD2d 1177). Defendant’s contention that the doll boot was
not visible and apparent is raised for the first time on appeal and
thus is not properly before us (see Ciesinski v Town of Aurora, 202
AD2d 984, 985).

     We agree with defendant, however, that the court erred in denying
the motion for summary judgment dismissing the complaint insofar as it
alleges that defendant failed to provide adequate lighting in the
parking lot, and we therefore modify the order accordingly. Defendant
met its initial burden of establishing that the allegedly poor
lighting in the parking lot was not a cause of the accident. In
support of its motion, defendant submitted the deposition testimony of
plaintiff wherein she acknowledged that she was not looking down as
she was walking and that she had walked only “a little distance” after
getting out of her vehicle before she fell (see Reyes v La Ronda
Cocktail Lounge, 27 AD3d 397; Christoforou v Lown, 120 AD2d 387, 390-
391). Plaintiff failed to raise a triable issue of fact in opposition
(see generally Zuckerman v City of New York, 49 NY2d 557, 562).




Entered:   April 1, 2011                       Patricia L. Morgan
                                               Clerk of the Court
