Phoebe v. Rochdale Village, Inc.

237 A.D.2d 340, 655 N.Y.S.2d 424, 1997 N.Y. App. Div. LEXIS 2314

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 1997
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Rutledge, J.), entered November 21, 1995, which, upon the granting of the defendant’s motion to dismiss the complaint at the close of the defendant’s case, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

The Supreme Court correctly dismissed the complaint, since, giving the plaintiff " 'the benefit of every favorable inference which can reasonably be drawn from [the] facts’ ” (McCummings v New York City Tr. Auth., 81 NY2d 923, 926), the plaintiff failed to establish that the defendant created the condition which allegedly caused her to slip and fall (Russell v Meat Farms, 160 AD2d 987; Fink v Board of Educ., 117 AD2d 704). Nor was there any evidence that the defendant had notice, either actual or constructive, of the allegedly defective condition.

The plaintiff’s remaining contentions are without merit. O’Brien, J. P., Santucci, Joy and Friedmann, JJ., concur.