Perrone v. Waldbaum, Inc.

252 A.D.2d 517, 675 N.Y.S.2d 294, 1998 N.Y. App. Div. LEXIS 8259

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Mastro, J.), entered August 4, 1997, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the defendant’s motion for summary judgment, as the defendant demonstrated that it was entitled to that relief as a matter of law. The plaintiff was required to demonstrate that an issue of fact existed that the defendant either created the defect which caused him to fall, or had actual or constructive notice of it (see, Piacquadio v Recine Realty Corp., 84 NY2d 967; Albano v City of New York, 250 AD2d 555; Kraemer v K-Mart Corp., 226 AD2d 590). The only issue raised on the appeal is whether the defendant created the allegedly defective condition. Contrary to the plaintiffs contention, the record contains no evidence to support such a finding. The plaintiff’s conclusion that the defendant created the condition is based upon mere speculation, which is insufficient to defeat the defendant’s motion for summary judgment dismissing the complaint (see, Goldman v Waldbaum, Inc., 248 AD2d 436; Kraemer v K-Mart Corp., supra). Rosenblatt, J. P., Sullivan, Joy, Altman and Luciano, JJ., concur.