BIRTHWRIGHT v. MALVERNE UNION FREE SCHOOL DISTRICT

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

Jenelle A. BIRTHWRIGHT, etc., et al., Appellant, v. MALVERNE UNION FREE SCHOOL DISTRICT, Respondent.

Decided: June 24, 2002

A. GAIL PRUDENTI, P.J., FRED T. SANTUCCI, NANCY E. SMITH and ROBERT W. SCHMIDT, JJ. Frederick K. Brewington, Hempstead, NY, for appellant. O'Connor, O'Connor, Hintz & Deveney, Garden City, N.Y. (Michael T. Reagan of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Davis, J.), entered November 2, 2000, which granted the defendant's motion for summary judgment.

ORDERED that the order is affirmed, with costs.

The defendant demonstrated its entitlement to judgment in its favor as a matter of law in the first instance by submitting evidence which tended to show, among other things, that the custodians in the school in which the infant plaintiff fell ordinarily mop the floors of the stairways in the late afternoon or evening.   The plaintiff's submissions were insufficient to demonstrate an issue of fact as to whether the defendant created, or had actual or constructive notice of, the wet condition which allegedly caused her to fall on a staircase at approximately 7:00 A.M. (see e.g. Frankie v. Glen Cove Hous. Auth., 276 A.D.2d 668, 714 N.Y.S.2d 749;  Spagnola v. Trump Taj Mahal, 261 A.D.2d 604, 690 N.Y.S.2d 715).   Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment.

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