| Pepe v SBCL, Inc. |
| 2014 NY Slip Op 05634 |
| Decided on August 6, 2014 |
| Appellate Division, Second Department |
| 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. |
Decided on August 6, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
THOMAS A. DICKERSON
JEFFREY A. COHEN
ROBERT J. MILLER, JJ.
2013-05732
(Index No. 864/11)
v
SBCL, Inc., doing business as Zachary's, respondent.
Kuharski, Levitz & Giovinazzo, Staten Island, N.Y. (Lonny R. Levitz of counsel), for appellant.
Camacho Mauro & Mulholland, LLP, New York, N.Y. (Wendy Jennings of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Iannacci, J.), entered March 15, 2013, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
In support of its motion for summary judgment, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not have actual or constructive notice of the defective condition alleged (see Mauge v Barrow St. Ale House, 70 AD3d 1016, 1017; Perlongo v Park City 3 & 4 Apts., Inc., 31 AD3d 409, 410-411). There is no claim on this appeal that the defendant created the condition.
In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant had actual or constructive notice of the condition alleged (see Sinclair v Chau, 117 AD3d 713; see also Warren v Walmart Stores, Inc., 105 AD3d 732, 733; see generally Gordon v American Museum of Natural History, 67 NY2d 836).
MASTRO, J.P., DICKERSON, COHEN and MILLER, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court