McKinney v. Plaza

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated June 9, 2006, which denied its motion for summary judgment dismissing the complaint. Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted. On October 8, 2002 the plaintiff allegedly was injured when she fell on a loose rubber tread located on a staircase at a building owned by the defendant, which was leased to the plaintiffs employer. The lease provided that the owner was responsible for repair and maintenance of “public portions” of the building. In support of its motion for summary judgment, the defendant adduced proof including, inter alia, the plaintiffs deposition testimony, which demonstrated prima facie that the alleged defective or dangerous condition did not exist in the location at the time of the plaintiffs alleged fall at the defendant’s premises (see Tenenbaum v Best 21 Ltd., 15 AD3d 646 [2005]; Mansueto v Worster, 1 AD3d 412, 413 [2003]; Tresgallo v Danica, 286 AD2d 326 [2001]). In opposition, the plaintiff failed to raise a triable issue of fact (see Leib v Silo Rest., Inc., 26 AD3d 359, 360 [2006]; Mansueto v Worster, supra; Varrone v Dinaro, 209 AD2d 508, 509 [1994]). Moreover, the plaintiff failed to demonstrate the existence of any question of fact as to whether the defendant had actual or constructive notice. Accordingly, the Supreme Court erred in denying the defendant’s motion for summary judgment dismissing the complaint (see Leib v Silo Rest., Inc., supra; Mansueto v Worster, supra; Varrone v Dinaro, supra; see also Pena v Women’s Outreach Network, Inc., 35 AD3d 104 [2006]; DeRosa v City of New York, 30 AD3d 323, 327 [2006]; Garcia v The Jesuits of Fordham, 6 AD3d 163, 166 [2004]). Crane, J.P., Skelos, Lifson and Dillon, JJ., concur.