| Gomez v David Minkin Residence Hous. Dev. Fund Co., Inc. |
| 2011 NY Slip Op 05665 [85 AD3d 1112] |
| June 28, 2011 |
| Appellate Division, Second Department |
| Louis Gomez, Respondent-Appellant, v David MinkinResidence Housing Development Fund Company, Inc.,Appellant-Respondent. |
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In an action to recover damages for personal injuries, the defendant appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated July 1,2010, as denied its motion for summary judgment dismissing the complaint, and the plaintiffcross-appeals from the same order.
Ordered that the cross appeal is dismissed as abandoned (see 22 NYCRR 670.8 [e]);and it is further,
Ordered that the order is reversed insofar as appealed from, on the law, and the defendant'smotion for summary judgment dismissing the complaint is granted; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The plaintiff commenced this action to recover damages for personal injuries allegedlysustained when he fell on an exterior front stairway located on premises owned by the defendant.The defendant moved for summary judgment dismissing the complaint, and the plaintiffcross-moved for summary judgment in his favor on the issue of liability. The Supreme Courtdenied the motion and the cross motion. We reverse the order insofar as appealed from.
To demonstrate its entitlement to summary judgment in a slip-and-fall case, a defendant mustestablish, prima facie, that it did not create the condition that allegedly caused the fall or haveactual or constructive notice of that condition for a sufficient length of time to discover andremedy it (see Gill v Town of N.Hempstead, 83 AD3d 777 [2011]; Molloy v Waldbaum, Inc., 72 AD3d 659, 660 [2010]; Musachio v Smithtown Cent. SchoolDist., 68 AD3d 949 [2009]; Holub v Pathmark Stores, Inc., 66 AD3d 741, 742 [2009]; Britto v Great Atl. & Pac. Tea Co.,Inc., 21 AD3d 436 [2005]). Here, the defendant established, prima facie, its entitlementto judgment as a matter of law by offering evidence that it neither created nor had actual orconstructive notice of any dangerous conditions on the stairway (see Alvarez v ProspectHosp., 68 NY2d 320 [1986]; Tyz vFirst St. Holding Co., Inc., 78 AD3d 818 [2010]; Joseph v New York City Tr. Auth., 66 AD3d 842 [2009]).[*2]
In opposition, the plaintiff failed to raise a triable issue offact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Although the plaintiff'sexpert asserted that the stairway violated various provisions of the Administrative Code of theCity of New York, the plaintiff failed to raise a triable issue of fact as to whether those allegedviolations contributed to his fall (seeRajwan v 109-23 Owners Corp., 82 AD3d 1199 [2011]). Moreover, contrary to theplaintiff's assertion, the stairway did not require a center handrail (see Gaston v New YorkCity Hous. Auth., 258 AD2d 220 [1999]; cf. Administrative Code of City of NY§ 27-376), and the mere fact that the exposed stairway was wet from the rain is insufficientto establish a dangerous condition (see Joseph v New York City Tr. Auth., 66 AD3d at843; King v New York City Tr. Auth., 266 AD2d 354 [1999]). Accordingly, the SupremeCourt should have granted the defendant's motion for summary judgment dismissing thecomplaint. Mastro, J.P., Belen, Sgroi and Miller, JJ., concur.