Torres v Kimberly Hotel, Inc.

[*1] Torres v Kimberly Hotel, Inc. 2010 NY Slip Op 51294(U) [28 Misc 3d 132(A)] Decided on July 21, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ
570275/10.

Luis Torres, Plaintiff-Respondent,

against

Kimberly Hotel, Inc., Defendant-Appellant, -and- Covad Communications Company, Defendant-Respondent. Kimberly Hotel, Inc., Third-party Plaintiff-Appellant, On Command Video Corporation, Third-party Defendant-Respondent.

Defendant/third-party plaintiff Kimberly Hotel Inc. appeals, as limited by its briefs, from that portion an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), dated August 17, 2009, which denied its motion for summary judgment dismissing plaintiff's complaint as against it.

Per Curiam.

Order (Elizabeth A. Taylor, J.), dated August 17, 2009, insofar as appealed from, reversed, with $10 costs, that branch of the motion of defendant Kimberly Hotel, Inc., (Kimberly) seeking summary judgment dismissing the complaint as against it granted, and the complaint dismissed as against it. The Clerk is directed to enter judgment accordingly.

Plaintiff, employed by third-party defendant On Command Video Corporation (Command), sustained injuries while replacing video tapes in an on-demand movie system situated in an electrical room in a building owned by Kimberly. The incident allegedly occurred when a computer router fell from atop an approximately eight-foot tall rack and struck plaintiff's back. The router was installed by defendant Covad Communications Company at the request of its customer, Command. [*2]

Kimberly made a prima facie showing that it neither created the dangerous condition allegedly posed by the router nor had actual or constructive notice of that condition (see Langer v BJ's Wholesale Club, Inc., 39 AD3d 714 [2007]). The evidence submitted by Kimberly demonstrated that its employees had no involvement in or knowledge of the router's installation, which, upon installation, became the property of Command. Moreover, Kimberly's employees lacked notice (actual or constructive) of the presence of the router.

In opposition, plaintiff failed to raise a triable issue. Plaintiff failed to adduce any evidence suggesting that Kimberly created or had notice of the allegedly dangerous condition posed by the router. Plaintiff's assertion that the electrical room was "overcrowded" with equipment owned by Kimberly, an assertion contradicted by his co-worker's deposition testimony, supports, at most, a finding that Kimberly had a general awareness that a dangerous condition might be present in the electrical room. Such a finding, however, is legally insufficient to raise a triable issue on the issue of notice (see Gordon v American Museum of Natural History, 67 NY2d 836, 838 [1986]).

We have considered and rejected plaintiff's argument that Kimberly could not rely upon the deposition transcripts it submitted in support of its motion (see White Knight v Shea, 10 AD3d 567 [2004]). We note in this connection that plaintiff, too, relied upon the transcripts in opposing the motion and that plaintiff does not identify any manner in which the transcripts are inaccurate.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: July 21, 2010