Tomao v. City of New York — 61 A.D.3d 674

Majority

p. 674

Tatiana Tomao et al., Appellants, v City of New York et al., Respondents.

[876 NYS2d 489]

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.

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. Schools, 35 AD3d 704 , 705 [2006]; Hackbarth v McDonalds Corp., 31 AD3d 498 , 499 [2006]; Negron v St. Patrick’s Nursing Home, 248 AD2d 687 [1998]; Kovelsky v City Univ. of N.Y., 221 AD2d 234 , 235 [1995]). 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

p. 675

ordinary prudence would have exercised under comparable circumstances (see Hilf v Massapequa Union Free School Dist., 245 AD2d 261 , 262 [1997]). In opposition, the plaintiffs failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320 , 324 [1986]). Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint. Fisher, J.P., Covello, Angiolillo and Dickerson, JJ., concur. [See 17 Misc 3d 1138 (A), 2007 NY Slip Op 52326 (11).]

Cases cited

Rodriguez v. White Plains Public Schools 35 AD3d 704 N.Y. App. Div. 2006-12-19 at 705 p. 674
Hackbarth v. McDonalds Corp. 31 AD3d 498 N.Y. App. Div. 2006-07-11 at 499 p. 674
Alvarez v. Prospect Hospital 68 NY2d 320 N.Y. 1986-11-11 at 324 p. 675