WILLIAMS v. CHURCH HOMES ASSOCIATES (2008)

Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered on or about September 24, 2007, which, in an action for personal injuries sustained when a parking lot gate that plaintiff, a security guard at defendant's premises, was attempting to close derailed from the track on which it slid and fell, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 Defendant established its prima facie entitlement to summary judgment with the deposition testimony of its building superintendent that he closed the gate everyday as part of his job duties, and, other than a jammed lock repaired some three months before the accident, never had any problems with the gate or received any complaints about it (see Marszalkiewicz v. Waterside Plaza, LLC, 35 A.D.3d 176, 177, 826 N.Y.S.2d 34 [2006] ).   No issues of fact as to constructive notice were raised by the affidavit of plaintiff's expert that the deteriorated and unsafe condition of the bottom rail and vertical support stop were clearly indicated by extensive rust (Garcia v. Northcrest Apts. Corp., 24 A.D.3d 208, 209, 806 N.Y.S.2d 44 [2005] [appearance of rust insufficient by itself to raise issue of fact as to constructive notice of a defect in one of the supporting poles of a chain-link fence] ).