553, 557, 347 N.Y.S.2d 22, 300 N.E.2d 403 (1973); Albergo v.
Deer Park Meat Farms, 138 A.D.2d 656, 656, 526 N.Y.S.2d 580, 581
(2d Dep't 1988). In this case, Sebco had a duty to maintain its
equipment as shown by its contract with the apartment house.
See, e.g., Rogers, 32 N.Y.2d at 559, 347 N.Y.S.2d 22,
300 N.E.2d 403. However, Velez has not shown that Sebco had actual or
constructive notice of the defect.
Actual or constructive notice means that the defendant knew or
should have known about the defect. Rogers, 32 N.Y.2d at 559,
347 N.Y.S.2d 22, 300 N.E.2d 403; Koch v. Otis Elevator Co.,
10 A.D.2d 464, 467, 200 N.Y.S.2d 700, 703 (1st Dep't 1960). Velez
does not contend, nor can she, that Sebco had actual notice of
the defect. There is no evidence of any report to Sebco that the
glass on the dryer door was defective. Nor is there any evidence
of a similar problem occurring in any other machine in the
However, Velez does contend that Sebco had constructive notice
because a reasonable inspection of the dryer door would have
revealed its defective condition. Velez asserts that a trained
technician familiar with moldings and casings would have spotted
the defect, though an ordinary user, like Velez, might not.
Although constructive notice can be inferred from
circumstantial evidence, see Rogers, 32 N.Y.2d at 561,
347 N.Y.S.2d 22, 300 N.E.2d 403, Velez does not offer any evidence
to support her assertions. There is no expert testimony or other
evidence demonstrating that a reasonably prudent technician would
have found the defect during a regularly scheduled inspection.
See Buria, 7 A.D.2d at 488, 184 N.Y.S.2d at 397 ("Negligence is
not established unless it be shown that proper testing would have
disclosed the [mechanism] to have been defective."); cf.
Albergo, 138 A.D.2d 656, 526 N.Y.S.2d 580 (holding that because
the plaintiff presented expert testimony "that a reasonable
inspection of the shopping cart would have given defendant notice
of the wheel's defective condition," the case was properly given
to the jury.). As explained above, Velez cannot simply rely on
conclusory statements in opposing a motion for summary judgment;
rather, she must come forward with specific facts and evidence.
Fed.R.Civ.P. 56(e); see also Legal Aid Society v. City of New
York, 114 F. Supp.2d 204 (S.D.N.Y. 2000); Ying Jing Gan v. City
of New York, 996 F.2d 522, 532 (2d Cir. 1993).
Velez also contends that Sebco unfairly prejudiced Velez's case
by not disclosing the age of the dryer. Velez alleges that Sebco
used the dryer beyond the warranted life of the machine, and
therefore, the machine could be expected to malfunction. This
argument suffers from the same defect as above. Velez has failed
to produce any expert testimony or other evidence to show that
using a machine beyond the warranted term means that the machine
is likely to malfunction. This type of evidence can be procured
without knowing the exact age of the dryer; therefore,
plaintiff's case was not prejudiced.
Because Velez has not put forth any evidence to demonstrate
that Sebco had actual or constructive notice of the defect, Velez
cannot make out a prima facie case of negligence.
For the reasons set forth above, Sebco's motion for summary
judgment is granted.