Pugni v. 17 Battery Park Place North Associates II

277 A.D.2d 124, 716 N.Y.S.2d 301, 2000 N.Y. App. Div. LEXIS 12128

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Paula Omansky, J.), entered on or about July 29, 1999, which granted defendants’ motion and cross motions for summary judgment dismissing the complaint as against all defendants, unanimously affirmed, without costs.

Defendants have established their entitlement to summary judgment as a matter of law by demonstrating a lack of any material issue of fact with regard to the issue of creation or notice of the alleged defect (Strowman v Great Atl. & Pac. Tea Co., 252 AD2d 384, 385). Only moments before plaintiffs slip and fall, plaintiff and her co-worker had walked over the very area where she fell and saw nothing on the floor. Neither they nor anyone else had seen any hazardous condition prior to the accident. Thus, defendants established a lack of any constructive notice of a dangerous condition (see, Pollio v Nelson Cleaning Co., 269 AD2d 512). Plaintiffs own affidavit in opposition to defendants’ motion and cross motions was insufficient to ere-ate a triable issue of fact as it was in contradiction to her deposition testimony and clearly tailored to create an issue of fact (Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320).

We have considered plaintiffs remaining contentions and find them to be unavailing. Concur — Rosenberger, J. P., Wallach, Saxe, Buckley and Friedman, JJ.