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Suh v. New York City Racing Association

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


May 19, 2009

NUNG JA SUH, RESPONDENT,
v.
NEW YORK CITY RACING ASSOCIATION, INC., APPELLANT, ET AL., DEFENDANT.

In an action to recover damages for personal injuries, the defendant New York City Racing Association, Inc., appeals from an order of the Supreme Court, Queens County (Grays, J.), entered December 12, 2006, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ROBERT A. SPOLZINO, J.P., FRED T. SANTUCCI, ARIEL E. BELEN and PLUMMER E. LOTT, JJ.

(Index No. 26039/04)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when the bench upon which she was seated in the grandstand of the Aqueduct Racetrack collapsed. The defendant racetrack owner (hereinafter the defendant) moved for summary judgment dismissing the complaint insofar as asserted against it, on the ground, among others, that it neither created nor had actual or constructive notice of the alleged defective condition of the bench.

The Supreme Court properly denied the defendant's motion. The defendant failed to establish, prima facie, that it did not have actual or constructive notice of the alleged defective condition (see Gordon v American Museum of Natural History, 67 NY2d 836, 837). Since the defendant failed to meet its initial burden, we need not review the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852).

In light of our determination, we need not address the defendant's remaining contentions.

SPOLZINO, J.P., SANTUCCI, BELEN and LOTT, JJ., concur.

20090519

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