Opinion
2013-05-9
Jason LAWRENCE, Plaintiff–Appellant, v. Correction Officer K. GONZALEZ, etc., Defendant, The City of New York, Defendant–Respondent.
Alan D. Levine, Kew Gardens, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Jacob Gardener of counsel), for respondent.
Alan D. Levine, Kew Gardens, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Jacob Gardener of counsel), for respondent.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered February 2, 2012, which, as modified by an order, same court and Justice, entered March 28, 2012, granted the motion of defendant City of New York for summary judgment to the extent of dismissing the first cause of action alleging negligence against it, unanimously affirmed, without costs.
Dismissal of the cause of action alleging negligence was appropriate since the City demonstrated the absence of actual or constructive notice of the defective condition of the chair that broke when plaintiff was sitting on it. The City relied upon plaintiff's testimony that he had never seen anything wrong with the plastic chair that the City provided for use by inmates at its facility, and that he was unaware of any complaints about the chair or any other of the plastic chairs that were used throughout the facility. The defective condition of the chair was not apparent and visible, and *867there was no evidence as to how the condition was created or how long it existed (see Quinones v. Federated Dept. Stores, Inc., 92 A.D.3d 931, 932, 939 N.Y.S.2d 134 [2d Dept. 2012];Levinstim v. Parker, 27 A.D.3d 698, 699–700, 815 N.Y.S.2d 596 [2d Dept. 2006] ). In opposition, plaintiff failed to raise a triable issue of fact, and his argument that the City was negligent in not inspecting the chairs, which appeared to be in good condition, is unavailing (see Singh v. United Cerebral Palsy of N.Y. City, Inc., 72 A.D.3d 272, 276, 896 N.Y.S.2d 22 [1st Dept. 2010] ).