| Nesterenko v Starrett City Assoc., L.P. |
| 2013 NY Slip Op 07717 [111 AD3d 806] |
| November 20, 2013 |
| Appellate Division, Second Department |
| Gulzhiyan Nesterenko, Appellant, v Starrett CityAssociates, L.P., et al., Respondents. |
—[*1] Brody, Benard & Branch, LLP, New York, N.Y. (Tanya M. Branch of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Martin, J.), dated November 28, 2011, whichgranted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action after she allegedly slipped and fell on a bananapeel in the 11th floor hallway of the defendants' building. According to the plaintiff, thebanana peel was located near a garbage chute, and there were several small garbage bagson the floor in front of the chute. The defendants moved for summary judgmentdismissing the complaint, contending that they did not create the alleged hazardouscondition or have actual or constructive notice of it. In support of their motion, thedefendants submitted, inter alia, the affidavit of a building porter, who averred that heinspected the area on the day before the plaintiff's accident, just before the end of hisshift, and did not observe any garbage or debris on the floor. The Supreme Court grantedthe motion.
The defendants established their entitlement to judgment as a matter of law bydemonstrating, prima facie, that they did not create the alleged hazardous condition orhave actual or constructive notice of it (see Rivera v 2160 Realty Co., L.L.C., 4 NY3d 837,838-839 [2005]; Gordon v American Museum of Natural History, 67 NY2d 836,837-838 [1986]; Muniz v NewYork City Hous. Auth., 38 AD3d 628 [2007]). In opposition, the plaintiff failedto raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]). Contrary to the plaintiff's contention, evidence that garbage bags had been lefton the floor near the garbage chute on prior occasions was insufficient to raise an issueof fact as to whether the defendants had notice of a recurring dangerous condition. Thisevidence established only that the defendants had a general awareness that garbage bagswere left on the floor near the chute, which was insufficient to charge them with noticeof the particular condition that caused the plaintiff's fall (see Kokin v Key FoodSupermarket, Inc., 90 AD3d 850, 851 [2011]; Mauge v Barrow St. AleHouse, 70 AD3d 1016, 1017 [2010]; Herrera v Felice Realty Corp., 22 AD3d 723, 724 [2005];Gloria v MGM Emerald Enters., 298 AD2d 355 [2002]). Accordingly, theSupreme Court properly granted the defendants' motion for summary judgmentdismissing the complaint. Rivera, J.P., Dillon, Roman and Miller, JJ., concur.