Opinion
November 10, 1997
Appeal from the Supreme Court, Westchester County (Lefkowitz, J.).
Ordered that the appeal from the order entered February 6, 1997, is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order entered December 9, 1996, is affirmed; and it is further,
Ordered that the defendant is awarded one bill of costs.
The plaintiff fell when her foot became "stuck on something" on the ground of a parking lot owned by the defendant. The plaintiff did not observe any defect on the parking lot property before or after her fall, which rendered her "practically unconscious".
In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon its property, it must be established that a defective condition existed, and that the landowner either affirmatively created the condition, or had actual or constructive notice of its existence ( see, Kuchman v. Olympia York, 238 A.D.2d 381). The Supreme Court was correct in granting summary judgment to the defendant, since there was no evidentiary proof in admissible form sufficient to raise a material issue of fact that the plaintiff fell as a result of a defective condition on the defendant's property ( see, Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 967; Zuckerman v. City of New York, 49 N.Y.2d 557, 562).
The plaintiff's motion, denominated as one to "renew and reargue", was, in effect, a motion to reargue, since the purportedly new material could have been submitted in opposition to the original motion for summary judgment ( see, Taylor v Brooklyn Hosp., 187 A.D.2d 714, 715; Echeverri v. Flushing Hosp. Med. Ctr., 123 A.D.2d 818, 819). As no appeal lies from an order denying reargument, the appeal from the order entered February 6, 1997, must be dismissed ( see, Matter of State Farm Mut. Auto. Ins. Co. v. Barbera, 161 A.D.2d 599).
Mangano, P. J., Copertino, Joy, Florio and Luciano, JJ., concur.