PUGLIANO v. [And a Third-Party Action].

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

Joan PUGLIANO, Plaintiff-Respondent, v. MORSE DIESEL INTERNATIONAL, INC., et al., Defendants-Respondents, GlobeGround North America LLC, formerly known as Hudson General, LLC, sued herein as Hudson General Corp., Defendant-Appellant. [And a Third-Party Action].

Decided: January 16, 2007

MAZZARELLI, J.P., FRIEDMAN, GONZALEZ, CATTERSON, JJ. Dombroff & Gilmore, New York (John R. Oh of counsel), for appellant. Ira Cooper, Carle Place, for Joan Pugliano, respondent. Kopff, Nardelli & Dopf LLP, New York (Martin B. Adams of counsel), for Morse Diesel International, Inc. and Dart Mechanical Corp., respondents.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered June 30, 2005, which denied defendant's motion for summary judgment, unanimously reversed, on the law, without costs, and the motion granted.   The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint as against it.

 The motion court erred in denying defendant GlobeGround's motion for summary judgment.   The record establishes that defendant's obligation to monitor and maintain ventilation equipment did not give rise to a duty to monitor the air coming out of the equipment, or to ensure the air quality inside the terminal.   It is undisputed that GlobeGround's employees had nothing to do with the placement of Morse's generators near the air intakes, and there was no evidence that GlobeGround had any responsibility, nor indeed any authorization, to suggest that they be placed elsewhere.

 Furthermore, GlobeGround established that it could have no liability because it had no notice, either actual or constructive, of the dangerous condition (Beck v. J.J.A. Holding Corp., 12 A.D.3d 238, 240, 785 N.Y.S.2d 424 [2004], lv. denied 4 N.Y.3d 705, 792 N.Y.S.2d 898, 825 N.E.2d 1093 [2005];  Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] [to constitute constructive notice of a dangerous condition, the defect or condition must be “visible and apparent, and ․ must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it”] ).   Contrary to plaintiff's claim, the testimony that there had been unspecified prior reports of bad smells in the traffic office, and throughout the airport generally over the past 10 years, as a result of its location on Jamaica Bay, did not constitute constructive notice of the dangerous fumes.