KELLY v. OLD NAVY

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Supreme Court, Appellate Division, First Department, New York.

Estell McKensie KELLY, Plaintiff-Appellant, v. OLD NAVY, et al., Defendants-Respondents.

Decided: October 21, 2004

BUCKLEY, P.J., MAZZARELLI, ANDRIAS, MARLOW, CATTERSON, JJ. Leonard Silverman, New York, for appellant. McAndrew, Conboy & Prisco, LLP, Woodbury (Robert M. Ortiz of counsel), for respondents.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered January 9, 2004, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff was injured when she slipped on an escalator in defendants' store, and seeks to recover for cuts and scars allegedly caused by the defectively sharp edge of an escalator step.   Defendants' evidence, however, established that the escalator was regularly inspected and that they had neither actual nor constructive notice of the alleged defect.   Since plaintiff's response did not adduce evidence warranting a contradictory inference, defendants' motion for summary judgment was properly granted (see McGarvey v. Bank of N.Y., 7 A.D.3d 431, 776 N.Y.S.2d 793 [2004] ).