KOBIASHVILLI v. Valange Garage Services, Inc., defendant-respondent. (2006)

In an action to recover damages for personal injuries, etc., the defendants Mitchell Hill and Central Queens Properties Corp. appeal from an order of the Supreme Court, Queens County (Dollard, J.), dated November 9, 2001, which denied that branch of their motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is reversed, on the law, with costs, and that branch of the appellants' motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted.

 The injured plaintiff allegedly slipped and fell on some food substance on an exterior, downhill ramp leading to a garage which was located in the basement level of an apartment building.   On their motion for summary judgment, the appellants established prima facie that they did not create the allegedly dangerous condition and did not have actual notice of it.   On the question of constructive notice, they established their entitlement to judgment as a matter of law by submitting proof that “the length of time for which the [defect] existed was unknown” (Perlongo v. Park City 3 & 4 Apts., 31 A.D.3d 409, 818 N.Y.S.2d 158), and a finding that the debris was present for a sufficient length of time to be discovered would be pure speculation (see DeLeon v. New York City Tr. Auth., 5 A.D.3d 531, 772 N.Y.S.2d 874).

 There is no evidence in this record that the nature of the establishment required frequent inspections for debris (see Yioves v. T.J. Maxx, 29 A.D.3d 572, 815 N.Y.S.2d 119;  Britto v. Great Atl. & Pac. Tea Co., 21 A.D.3d 436, 799 N.Y.S.2d 828;  Joachim v. 1824 Church Ave., 12 A.D.3d 409, 784 N.Y.S.2d 157;  Tucci v. Stewart's Ice Cream, 296 A.D.2d 650, 746 N.Y.S.2d 60;   Altieri v. Golub Corp., 292 A.D.2d 734, 741 N.Y.S.2d 126;  Mancini v. Quality Mkts., 256 A.D.2d 1177, 684 N.Y.S.2d 391).   On the question of a recurring condition, the plaintiffs bore the burden of submitting evidence that the appellants had actual notice of such a condition (see Stone v. Long Is. Jewish Med. Ctr., 302 A.D.2d 376, 754 N.Y.S.2d 352).   The injured plaintiff's conclusory statements in his affidavit were insufficient to raise a triable issue of fact on that issue (see Grottano v. City of New York, 304 A.D.2d 713, 757 N.Y.S.2d 795).

Accordingly, the appellants were entitled to summary judgment.

The appellant's arguments with respect to that branch of their motion which was for summary judgment on that part of their cross claim which was asserted by the defendant Central Queens Properties Corp. for contractual indemnification against the defendant Valange Garage Services, Inc., are not properly before us on this appeal as that branch of the motion remains pending and undecided (see Katz v. Katz, 68 A.D.2d 536, 418 N.Y.S.2d 99).