Zektser v. Better Homes Depot, Inc.

302 A.D.2d 455, 753 N.Y.S.2d 753

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 2003
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Dowd, J.), dated November 16, 2001, which granted the separate motions of the defendants, Marc Oringer and Better Homes Depot, Inc., for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with costs to the defendant Marc Oringer.

To impose liability upon a property owner for injuries caused by a defective condition, a plaintiff must establish that the owner created the condition or had actual or constructive notice of its existence (see Brown-Phifer v Cross County Mall Multiplex, 282 AD2d 564; Bonilla v Starrett City at Spring Cr., 270 AD2d 377; Kuchman v Olympia & York, USA, 238 AD2d 381).

The defendants respectively demonstrated their prima facie entitlement to summary judgment dismissing the complaint by establishing that they neither created the alleged defect nor had actual or constructive notice of its existence. In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562). Accordingly, the grant of summary judgment was proper.

The plaintiffs’ remaining contentions either are raised for the first time on appeal and not properly before this Court (see Rosendale v Galin, 266 AD2d 444; Gross v Aetna Cas. & Sur. Co., 240 AD2d 468), or are without merit. Florio, J.P., Friedmann, Cozier and Mastro, JJ., concur.