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Torres v. Washington Heights Business Improvement District Management Association

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 2, 2008

MARIETTE TORRES, PLAINTIFF-APPELLANT,
v.
WASHINGTON HEIGHTS BUSINESS IMPROVEMENT DISTRICT MANAGEMENT ASSOCIATION, INC., DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Leland G. DeGrasse, J.), entered May 22, 2007, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

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.

Mazzarelli, J.P., Saxe, Catterson, Renwick, Freedman, JJ.

111780/05

Summary dismissal was properly granted in this matter where plaintiff was injured when she tripped on a plastic bag during a street fair that was hosted and sponsored by defendant. Although defendant, as a licensee who obtained permission to use the designated streets to sponsor and host the fair, owed a duty of care to maintain the area in a reasonably safe condition (see Maheshwari v City of New York, 2 NY3d 288, 294 [2004]), the evidence demonstrates that defendant established its entitlement to summary judgment by showing that it had no constructive notice of the defective condition (see Smith v Costco Wholesale Corp., 50 AD3d 499 [2008]). The general awareness of litter in the streets is insufficient to raise a triable issue as to whether defendant had constructive notice of the plastic bag that caused plaintiff's fall (see Gordon v American Museum of Natural History, 67 NY2d 836, 838 [1986]; Melendez v New York City Hous. Auth., 23 AD3d 211 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081202

© 1992-2008 VersusLaw Inc.



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