SACCA v. 41 BLEECKER STREET OWNERS CORP (2008)

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered December 24, 2007, which, to the extent appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted.   The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

 Plaintiff was struck by a falling window screen as he walked past defendant's property on Bleecker Street in October 2004.   There is no evidence that defendant had actual or constructive notice of a defective condition in time to discover and remedy it prior to the accident, nor any evidence that it created the condition (Martinez v. Morris Ave. Equities, 30 A.D.3d 264, 817 N.Y.S.2d 47 [2006] ).   That the screen may have come from one of the co-operative tenant's apartments does not constitute notice to defendant of a defective condition (Delosangeles v. Asian Ams. for Equality, Inc., 40 A.D.3d 550, 838 N.Y.S.2d 26 [2007] ).   The theory of res ipsa loquitur is inapplicable because it has not been established that the screen and its mechanism were within defendant's exclusive control (Radnay v. 1036 Park Corp., 17 A.D.3d 106, 793 N.Y.S.2d 344 [2005] ).