Opinion
2013-07-17
Hector HUAMAN, respondent, v. Marie Veronica TIERNEY, appellant, et al., defendant.
Penino & Moynihan, LLP, White Plains, N.Y. (Henry L. Liao of counsel), for appellant. Gurfein Douglas LLP, New York, N.Y. (Amy Ngai of counsel), for respondent.
Penino & Moynihan, LLP, White Plains, N.Y. (Henry L. Liao of counsel), for appellant. Gurfein Douglas LLP, New York, N.Y. (Amy Ngai of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.
In an action to recover damages for personal injuries, the defendant Marie Veronica Tierney appeals from an order of the Supreme Court, Westchester County (Walker, J.), entered January 6, 2012, which denied her motion for summary judgment dismissing the complaint insofar as asserted against her.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Marie Veronica Tierney for summary judgment dismissing the complaint insofar as asserted against her is granted.
The plaintiff allegedly fell after his pants got caught in a wire protruding from a fence on the property of the defendant Marie Veronica Tierney (hereinafter the appellant). The fence enclosed a garden area abutting a pathway leading to the sidewalk. The appellant established her prima facie entitlement to judgment as a matter of law by demonstrating that she did not create or have actual or constructive notice of the alleged defect which caused the plaintiff to fall ( see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774;Saggio v. Town of Islip, 78 A.D.3d 922, 910 N.Y.S.2d 665). In opposition, the plaintiff failed to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).
Accordingly, the Supreme Court should have granted the appellant's motion for summary judgment dismissing the complaint insofar as asserted against her.