Torres v. Washington Heights Business Improvement District Management Ass'n

57 A.D.3d 214, 868 N.Y.2d 57

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 2008
• Status: Published

Opinion

Summary dismissal was properly granted in this matter where plaintiff was injured when she tripped on a plastic bag during a street fair that was hosted and sponsored by defendant. Although defendant, as a licensee who obtained permission to use the designated streets to sponsor and host the fair, owed a duty of care to maintain the area in a reasonably safe condition (see Maheshwari v City of New York, 2 NY3d 288, 294 [2004]), the evidence demonstrates that defendant established its entitlement to summary judgment by showing that it had no constructive notice of the defective condition (see Smith v Costco Wholesale Corp., 50 AD3d 499 [2008]). The general awareness of litter in the streets is insufficient to raise a triable issue as to whether defendant had constructive notice of the plastic bag that caused plaintiffs fall (see Gordon v American Museum of Natural History, 67 NY2d 836, 838 [1986]; Melendez v New York City Hous. Auth., 23 AD3d 211 [2005]). Concur—Mazzarelli, J.P., Saxe, Catterson, Renwick and Freedman, JJ.