Labinger v Duane Reade, Inc.

[*1] Labinger v Duane Reade, Inc. 2005 NYSlipOp 51259(U) Decided on August 9, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 9, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. WILLIAM J. DAVIS, J.P.
HON. PHYLLIS GANGEL-JACOB
HON. MARTIN SCHOENFELD, Justices.


Jaret Labinger and Maritza Labinger, NY County Clerk's #570208/04 Petitioners-Appellants,

against

Duane Reade, Inc. and PARK AVENUE PLAZA COMPANY, Defendants-Respondents.

Plaintiffs appeal from an order of the Civil Court, New York County, entered October 3, 2003 (Analisa Torres, J.) which granted defendants' motion for summary judgment dismissing the complaint.

PER CURIAM:

Order entered October 3, 2003 (Analisa Torres, J.) affirmed, with $10 costs.

The first-named plaintiff allegedly sustained injuries when he slipped and fell on a piece of white paper that looked like an advertizing flyer while descending a stairwell in defendants' store premises. In response to defendants' prima facie showing of entitlement to judgment as a matter of law, plaintiff failed to raise a triable issue as to whether defendants' created or had actual or constructive notice of the allegedly dangerous condition. Lacking in the record is any evidence that defendants knew of the presence of the piece of paper or that the paper had been on the stairs long enough prior to the accident that notice might be inferred (see Rivera v 2160 Realty Co., LLC, 4 NY3d 837, 838 [2005]; Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Significant in this regard is the plaintiff's own [*2]deposition testimony acknowledging that he did not see any paper or other debris on the stairs immediately prior to his fall or while ascending the steps "just a couple of minutes" earlier. Nor did plaintiff present sufficient evidence to raise a triable issue that there was any recurring dangerous condition on the stairwell (see Tejeda v Six Ten Mgt. Corp., 15 AD3d 265 [2005]; Smith v Funnel Equities, Inc., 282 AD2d 445 [2001]) or that defendants' alleged failure to provide "enough trash receptacles to [their] customers" was a causative factor of plaintiff's fall on paper of unknown etiology (see Segretti v Shorenstein Co., 256 AD2d 234 [1998]).

This constitutes the decision and order of the court.
Decision Date: August 09, 2005