Huaman v Tierney

Huaman v Tierney 2013 NY Slip Op 05299 Decided on July 17, 2013 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 17, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
RUTH C. BALKIN
L. PRISCILLA HALL
LEONARD B. AUSTIN, JJ.
2012-00953
(Index No. 10255/10)

[*1]Hector Huaman, respondent,

v

Marie Veronica Tierney, appellant, et al., defendant.




Penino & Moynihan, LLP, White Plains, N.Y. (Henry L. Liao of
counsel), for appellant.
Gurfein Douglas LLP, New York, N.Y. (Amy Ngai of counsel),
for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Marie Veronica Tierney appeals from an order of the Supreme Court, Westchester County (Walker, J.), entered January 6, 2012, which denied her motion for summary judgment dismissing the complaint insofar as asserted against her.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Marie Veronica Tierney for summary judgment dismissing the complaint insofar as asserted against her is granted.

The plaintiff allegedly fell after his pants got caught in a wire protruding from a fence on the property of the defendant Marie Veronica Tierney (hereinafter the appellant). The fence enclosed a garden area abutting a pathway leading to the sidewalk. The appellant established her prima facie entitlement to judgment as a matter of law by demonstrating that she did not create or have actual or constructive notice of the alleged defect which caused the plaintiff to fall (see Gordon v American Museum of Natural History, 67 NY2d 836; Saggio v Town of Islip, 78 AD3d 922). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320).

Accordingly, the Supreme Court should have granted the appellant's motion for summary judgment dismissing the complaint insofar as asserted against her.
MASTRO, J.P., BALKIN, HALL and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court