MARINELLI v. REGAL CINEMAS

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

Joseph MARINELLI, appellant, v. REGAL CINEMAS, respondent.

Decided: May 29, 2007

ROBERT A. SPOLZINO, J.P., ANITA R. FLORIO, PETER B. SKELOS, and WILLIAM E. McCARTHY, JJ. Palmeri & Gaven, New York, N.Y. (John J. Palmeri and Lawrence A. Doris of counsel), for appellant. Robin, Harris, King, Yuhas, Fodera & Richman, New York, N.Y. (Deborah F. Peters and William J. Cariello III, of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Minardo, J.), dated June 22, 2006, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly sustained personal injuries at a movie theater owned by the defendant, when he tripped on a piece of carpet that was raised two to four inches off the tile floor.   The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint.

The defendant established its prima facie entitlement to summary judgment by showing, as a matter of law, that it did not create or have actual or constructive notice of the allegedly dangerous condition that caused the accident (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Chemont v. Pathmark Supermarkets, 279 A.D.2d 545, 720 N.Y.S.2d 148).   In opposition, the plaintiff failed to raise a triable issue of fact.   As the Supreme Court correctly determined, the plaintiff offered no evidence concerning how long the alleged hazard existed prior to the accident (see Lipsky v. Firebaugh Realty Corp., 26 A.D.3d 313, 314, 809 N.Y.S.2d 535;  Kerson v. Waldbaums Supermarket, 284 A.D.2d 376, 377, 725 N.Y.S.2d 676).

The plaintiff's remaining contentions are without merit.

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