Opinion
02-04-2015
Jose MORALES, respondent, v. NEW YORK CITY HOUSING AUTHORITY, et al., appellants, et al., defendant.
Cullen and Dykman LLP, New York, N.Y. (Kevin C. McCaffrey of counsel), for appellants. Terilli & Tintle, PLLC, New York, N.Y. (Giancarlo Terilli of counsel), for respondent.
Cullen and Dykman LLP, New York, N.Y. (Kevin C. McCaffrey of counsel), for appellants.
Terilli & Tintle, PLLC, New York, N.Y. (Giancarlo Terilli of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and COLLEEN D. DUFFY, JJ.
Opinion In an action to recover damages for personal injuries, the defendants New York City Housing Authority, Eleanor Roosevelt I, and Eleanor Roosevelt II appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated October 21, 2013, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants New York City Housing Authority, Eleanor Roosevelt I, and Eleanor Roosevelt II for summary judgment dismissing the complaint insofar as asserted against them is granted.
Although the appellants did not establish, prima facie, that the plaintiff did not know what had caused him to fall (see Lamour v. Decimus, 118 A.D.3d 851, 851–852, 988 N.Y.S.2d 235 ; Giraldo v. Twins Ambulette Serv., Inc., 96 A.D.3d 903, 903–904, 946 N.Y.S.2d 871 ), the appellants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create the alleged hazardous condition or have actual or constructive notice of it (see Rivera v. 2160 Realty Co., L.L.C., 4 N.Y.3d 837, 797 N.Y.S.2d 369, 830 N.E.2d 267 ; Nesterenko v. Starrett City Assoc., L.P., 111 A.D.3d 806, 807, 975 N.Y.S.2d 123 ; Perez v. New York City Hous. Auth., 75 A.D.3d 629, 630, 906 N.Y.S.2d 299 ; Muniz v. New York City Hous. Auth., 38 A.D.3d 628, 831 N.Y.S.2d 513 ). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the appellants had actual notice of a recurrent hazardous condition such that they could be charged with constructive notice of the specific condition that allegedly caused the plaintiff to fall (see Mauge v. Barrow St. Ale House, 70 A.D.3d 1016, 1017, 895 N.Y.S.2d 499 ; Allan v. Casperkill Country Club, 38 A.D.3d 579, 832 N.Y.S.2d 597 ; Kasner v. Pathmark Stores, Inc., 18 A.D.3d 440, 441, 794 N.Y.S.2d 418 ; Carlos v. New Rochelle Mun. Hous. Auth., 262 A.D.2d 515, 516, 692 N.Y.S.2d 428 ).
Accordingly, the Supreme Court should have granted the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.