OTEY v. CITY OF NEW YORK

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

Roland OTEY, appellant, v. CITY OF NEW YORK, et al., respondents, et al., defendant.

Decided: July 24, 2007

HOWARD MILLER, J.P., WILLIAM F. MASTRO, ROBERT A. LIFSON, and EDWARD D. CARNI, JJ. Jacoby & Meyers (Finkelstein & Partners, Newburgh, N.Y. [James W. Shuttleworth III] of counsel), for appellant. Hardin, Kundla, McKeon & Poletto, P.A., New York, N.Y. (James A. Cardenas of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated February 8, 2006, which granted the motion of the defendants City of New York and Black Veterans for Social Justice, Inc., for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly slipped and fell on water on top of a step adjacent to the bathroom of a shelter which was owned by the defendant City of New York and operated by the defendant Black Veterans for Social Justice, Inc. (hereinafter collectively the defendants).   The defendants established their entitlement to judgment as a matter of law by submitting evidence sufficient to demonstrate that they neither created nor had actual or constructive notice of the alleged hazardous condition (see Nu Li Lin v. New York City Hous. Auth., 36 A.D.3d 776, 829 N.Y.S.2d 156;  Perlongo v. Park City 3 & 4 Apts., Inc., 31 A.D.3d 409, 818 N.Y.S.2d 158).   In opposition, the plaintiff failed to raise a triable issue of fact (see Connelly v. Shop Rite Supermarkets, Inc., 38 A.D.3d 588, 830 N.Y.S.2d 670;  Anderson v. Central Val. Realty Co., 300 A.D.2d 422, 751 N.Y.S.2d 586;  cf. Lowe v. Spada, 282 A.D.2d 815, 722 N.Y.S.2d 820).   The plaintiff's contention that the summary judgment motion should have been denied as premature is without merit (see Min Whan Ock v. City of New York, 34 A.D.3d 542, 824 N.Y.S.2d 651;  Price v. County of Suffolk, 303 A.D.2d 571, 756 N.Y.S.2d 758).

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