Opinion
2001-11122
Argued January 17, 2003.
February 13, 2003.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Dowd, J.), dated November 16, 2001, which granted the separate motions of the defendants, Marc Oringer and Better Homes Depot, Inc., for summary judgment dismissing the complaint insofar as asserted against them.
James F. Woods Associates, P.C., New York, N.Y. (Sanford F. Young and Jan B. Rothman of counsel; Anna Goldstein on the brief), for appellants.
James P. Nunemaker, Jr., Uniondale, N.Y. (Keith Edmund Ford of counsel), for respondent Marc Oringer.
Ackerman Raphan and Sultzer, Oceanside, N.Y. (Neal H. Sultzer of counsel), for respondent Better Homes Depot, Inc. (relying on brief of respondent Marc Oringer).
Before: ANITA R. FLORIO, J.P., WILLIAM D. FRIEDMANN, BARRY A. COZIER, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs to the defendant Marc Oringer.
To impose liability upon a property owner for injuries caused by a defective condition, a plaintiff must establish that the owner created the condition or had actual or constructive notice of its existence (see Brown-Phifer v. Cross County Mall Multiplex, 282 A.D.2d 564; Bonilla v. Starrett City at Spring Cr., 270 A.D.2d 377; Kuchman v. Olympia York, USA, 238 A.D.2d 381).
The defendants respectively demonstrated their prima facie entitlement to summary judgment dismissing the complaint by establishing that they neither created the alleged defect nor had actual or constructive notice of its existence. In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Accordingly, the grant of summary judgment was proper.
The plaintiffs' remaining contentions either are raised for the first time on appeal and not properly before this court (see Rosendale v. Galin, 266 A.D.2d 444; Gross v. Aetna Cas. Sur. Co., 240 A.D.2d 468), or are without merit.
FLORIO, J.P., FRIEDMANN, COZIER and MASTRO, JJ., concur.