Roth v. Spletzer

Appellate Division of the Supreme Court of New York

Roth v. Spletzer

236 A.D.2d 599, 654 N.Y.S.2d 655, 1997 N.Y. App. Div. LEXIS 1577

Appellate Division of the Supreme Court of the State of New York·Decided February 24, 1997·Published·Cited by 2 cases

Opinion

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Barasch, J.), dated April 11, 1996, which denied her motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the defendant’s motion for summary judgment is granted, and the complaint is dismissed.

Under the circumstances of this case, the defendant has established prima facie entitlement to summary judgment [600] based on lack of notice, actual or constructive, of any defect of the fence which collapsed when the plaintiff leaned on it, causing her injury. The affidavits submitted by the plaintiff in opposition to the defendant’s motion, including the conclusory affidavit of the plaintiff’s expert, do not raise any triable issue of fact regarding such notice. Thus, the defendant is entitled to summary judgment (see, Zuckerman v City of New York, 49 NY2d 557, 562; Mankowski v Two Park Co., 225 AD2d 673).

The plaintiff’s remaining contentions are without merit. Rosenblatt, J. P., Pizzuto, Altman and Luciano, JJ., concur.

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—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Barasch, J.), dated April 11, 1996, which denied her motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the defendant’s motion for summary judgment is granted, and the complaint is dismissed.

Under the circumstances of this case, the defendant has established prima facie entitlement to summary judgment [600] based on lack of notice, actual or constructive, of any defect of the fence which collapsed when the plaintiff leaned on it, causing her injury. The affidavits submitted by the plaintiff in opposition to the defendant’s motion, including the conclusory affidavit of the plaintiff’s expert, do not raise any triable issue of fact regarding such notice. Thus, the defendant is entitled to summary judgment (see, Zuckerman v City of New York, 49 NY2d 557, 562; Mankowski v Two Park Co., 225 AD2d 673).

The plaintiff’s remaining contentions are without merit. Rosenblatt, J. P., Pizzuto, Altman and Luciano, JJ., concur.

Roth v. Spletzer, 236 A.D.2d 599, 654 N.Y.S.2d 655, 1997 N.Y. App. Div. LEXIS 1577 (N.Y. Ct. App. 1997).

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