New York Supreme and/or Appellate Courts Appellate Division, First Department
May 9, 2013
JASON LAWRENCE, CORRECTION OFFICER PLAINTIFF-APPELLANT,
K. GONZALEZ, ETC.,
THE CITY OF NEW YORK,
Lawrence v Gonzalez
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 May 9, 2013
Andrias, J.P., Saxe, Moskowitz, Freedman, JJ.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered February 2, 2012, which, as modified by an order, same court and Justice, entered March 28, 2012, granted the motion of defendant City of New York for summary judgment to the extent of dismissing the first cause of action alleging negligence against it, unanimously affirmed, without costs.
Dismissal of the cause of action alleging negligence was appropriate since the City demonstrated the absence of actual or constructive notice of the defective condition of the chair that broke when plaintiff was sitting on it. The City relied upon plaintiff's testimony that he had never seen anything wrong with the plastic chair that the City provided for use by inmates at its facility, and that he was unaware of any complaints about the chair or any other of the plastic chairs that were used throughout the facility. The defective condition of the chair was not apparent and visible, and there was no evidence as to how the condition was created or how long it existed (see Quinones v Federated Dept. Stores, Inc., 92 AD3d 931, 932 [2d Dept 2012]; Levinstim v Parker, 27 AD3d 698, 699-700 [2d Dept 2006]). In opposition, plaintiff failed to raise a triable issue of fact, and his argument that the City was negligent in not inspecting the chairs, which appeared to be in good condition, is unavailing (see Singh v United Cerebral Palsy of N.Y. City, Inc., 72 AD3d 272, 276 [1st Dept 2010]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 9, 2013
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