Opinion
14037 Index No. 156050/16 Case No. 2021-00209
06-10-2021
Duval LARA, Plaintiff–Appellant, v. TUCK–IT–AWAY AT 135TH STREET, INC., Defendant–Respondent, Tuck–It–Away of Manhattan, Inc., et al., Defendants. [And A Third–Party Action]
Pollack, Pollack, Isaac & DeCicco, New York ( Jillian Rosen and Greg Freedman of counsel), for appellant. Black Marjieh & Sanford LLP, Elmsford ( Dana Khalife–Marjieh of counsel), for respondent.
Pollack, Pollack, Isaac & DeCicco, New York ( Jillian Rosen and Greg Freedman of counsel), for appellant.
Black Marjieh & Sanford LLP, Elmsford ( Dana Khalife–Marjieh of counsel), for respondent.
Manzanet–Daniels, J.P., Gische, Oing, Shulman, JJ.
Order, Supreme Court, New York County (David B. Cohen, J.), entered January 22, 2020, which denied plaintiff's motion for partial summary judgment on liability, unanimously affirmed, without costs.
Plaintiff's notice of appeal filed on December 30, 2020 was timely because the time to file this notice commenced upon service of a copy of the order with notice of entry on December 30, 2020, and not when the order was transmitted and entered into the NYSCEF site on January 21, 2020 ( see 22 NYCRR 202.5–b [h][2]).
Plaintiff's motion for partial summary judgment on the issue of defendant's negligence was properly denied in that questions of fact remain as to whether the alleged condition qualifies as an actionable defect ( see Hardsog v. Price Chopper Operating Co., Inc., 99 A.D.3d 1130, 1131, 952 N.Y.S.2d 802 [3d Dept. 2012] ), and whether plaintiff's fall and alleged injuries were related to such condition ( see generally Kesselman v. Lever House Rest., 29 A.D.3d 302, 303–304, 816 N.Y.S.2d 13 [1st Dept. 2006] ).
We have considered plaintiff's remaining arguments and find them unavailing.