Williams v. Church Home Associates, L.P.

49 A.D.3d 386, 854 N.Y.2d 357

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 13, 2008
• Status: Published

Opinion

Defendant established its prima facie entitlement to summary judgment with the deposition testimony of its building superintendent that he closed the gate everyday as part of his job duties, and, other than a jammed lock repaired some three months before the accident, never had any problems with the gate or received any complaints about it (see Marszalkiewicz v Waterside Plaza, LLC, 35 AD3d 176, 177 [2006]). No issues of fact as to constructive notice were raised by the affidavit of plaintiff’s expert that the deteriorated and unsafe condition of the bottom rail and vertical support stop were clearly indicated by extensive rust (Garcia v Northcrest Apts. Corp., 24 AD3d 208, 209 [2005] [appearance of rust insufficient by itself to raise issue of fact as to constructive notice of a defect in one of the supporting poles of a chain-link fence]). Concur—Saxe, J.P., Gonzalez, Buckley and Acosta, JJ.