| Sama v Sama |
| 2012 NY Slip Op 01449 [92 AD3d 862] |
| February 21, 2012 |
| Appellate Division, Second Department |
| Paul Sama, Respondent, v Celeste Sama,Appellant. |
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Kitson Law Firm, LLP, White Plains, N.Y. (James R. Carcano of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Westchester County (Tolbert, J.), entered July 6, 2011, which denied hermotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
The plaintiff allegedly sustained injuries while pruning tree branches at the house of hismother, the defendant herein. The plaintiff alleges that he was standing on a ladder when theladder hinges broke apart and caused the ladder to collapse to the ground. The plaintiffcommenced the instant action asserting a single cause of action to recover damages fornegligence. Following the completion of discovery, the defendant moved for summary judgmentdismissing the complaint. The Supreme Court denied the motion, concluding that the defendantfailed to meet her prima facie burden. The defendant appeals, and we reverse.
In cases alleging an injury caused by a defective condition, the plaintiff must show that thelandowner either created the defective condition, or had actual or constructive notice of thedefect (see Dougherty v O'Connor,85 AD3d 1090 [2011]; Santiago vC&S Wholesale Grocers Inc., 83 AD3d 814 [2011]; Levinstim v Parker, 27 AD3d 698 [2006]; see also Navarro v City of New York,75 AD3d 590 [2010]; Chowdhury vRodriguez, 57 AD3d 121, 131-132 [2008]). Here, in support of her motion, thedefendant submitted the deposition testimony of both parties, which established that she neithercreated the condition that allegedly caused the plaintiff to fall, nor had actual or constructivenotice of such condition prior to the occurrence in question. In opposition to the defendant'sdemonstration of her prima facie entitlement to judgment as a matter of law, the plaintiff failed toraise a triable issue of fact. Accordingly, the defendant's motion for summary judgmentdismissing the complaint should have been granted. Dillon, J.P., Lott, Roman and Cohen, JJ.,concur.