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Tomao v. City of New York

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT


April 7, 2009

TATIANA TOMAO, ETC., ET AL., APPELLANTS,
v.
CITY OF NEW YORK, ET AL., RESPONDENTS.

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Aliotta, J.), dated December 10, 2007, which granted the defendants' motion for summary judgment dismissing the complaint.

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.

STEVEN W. FISHER, J.P., JOSEPH COVELLO, DANIEL D. ANGIOLILLO and THOMAS A. DICKERSON, JJ.

(Index No. 102792/05)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

In this slip-and-fall case, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting evidence demonstrating that they neither created nor had actual or constructive notice of the allegedly dangerous condition created by water that had just been tracked into a school by the infant plaintiff (see Rodriguez v White Plains Pub. School, 35 AD3d 704, 705; Hackbarth v McDonalds Corp., 31 AD3d 498, 499; Negron v St. Patrick's Nursing Home, 248 AD2d 687; Kovelsy v City University of N.Y., 221 AD2d 234, 235). Moreover, the defendants also made a prima facie showing that they did not fail to exercise that degree of reasonable care over the infant plaintiff that a parent of ordinary prudence would have exercised under comparable circumstances (see Hilf v Massapequa Union Free School Dist., 245 AD2d 261, 262). In opposition, the plaintiffs failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

FISHER, J.P., COVELLO, ANGIOLILLO and DICKERSON, JJ., concur.

20090407

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