COLELLA v. MAROLLA

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

Felice B. COLELLA, Respondent, v. Frank MAROLLA, etc., et al., Appellants.

Decided: November 25, 2002

CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER and BARRY A. COZIER, JJ. Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, NY, [Marshall D. Sweetbaum] of counsel), for appellants. Daly Dalton & Schermerhorn, P.C., New York, NY, (Kenneth M. Dalton of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Richmond County (Gigante, J.), dated February 4, 2002, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff allegedly sustained injuries after falling down a basement staircase in the defendants' home.   At the time of the plaintiff's fall, he was attempting, with the assistance of another individual, to carry a washing machine down the stairs while walking backwards.   The plaintiff alleges that he was caused to fall after his foot got stuck on a piece of loose carpeting.

The defendants made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that there was no evidence of a defective condition which caused the plaintiff to fall and, in any event, that they did not create the allegedly defective condition and did not have actual or constructive notice thereof (see Brown-Phifer v. Cross County Mall Multiplex, 282 A.D.2d 564, 723 N.Y.S.2d 393;  Pianforini v. Kelties Bum Steer, 258 A.D.2d 634, 685 N.Y.S.2d 804).   The plaintiff failed to raise an issue of fact in response.   Accordingly, the defendants' motion for summary judgment should have been granted, and the complaint dismissed (see Rivera v. Waldbaums, Inc., 298 A.D.2d 449, 748 N.Y.S.2d 278;  Sarabia v. Hilaire Farm Nursing Home, 250 A.D.2d 586, 672 N.Y.S.2d 394).

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