Mirza DeLeon v Michael Bluth

DeLeon v Bluth 2003 NY Slip Op 19955 [2 AD3d 771] December 29, 2003 Appellate Division, Second Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

Mirza DeLeon, Appellant,
v
Michael Bluth, Respondent.

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated October 4, 2002, which granted the defendant's motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant made a prima facie showing that he neither created nor had actual or constructive notice of the alleged condition which caused the plaintiff to slip and fall, and thus established his entitlement to judgment as a matter of law (see Papazian v New York City Tr. Auth., 293 AD2d 658 [2002]; Sanchez v Delgado Travel Agency, 279 AD2d 623 [2001]; Mercer v City of New York, 223 AD2d 688 [1996], affd 88 NY2d 955 [1996]; Bradish v Tank Tech Corp., 216 AD2d 505 [1995]). The burden then shifted to the plaintiff to come forward with evidence sufficient to show the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). In opposition to the defendant's motion, the plaintiff failed to submit evidence sufficient to raise a question of fact as to whether the defendant either created the alleged condition while performing construction work, or had actual or constructive notice thereof (see Papazian v New York City Tr. Auth., supra; Sanchez v Delgado Travel Agency, supra; Mercer v City of New York, supra; Bradish v Tank Tech Corp., supra). Prudenti, P.J., S. Miller, H. Miller and Adams, JJ., concur.