Torresv.Washington Heights Business

Appellate Division of the Supreme Court of New York, First DepartmentDec 2, 2008
868 N.Y.S.2d 57 (N.Y. App. Div. 2008)
868 N.Y.S.2d 5757 A.D.3d 2142008 N.Y. Slip Op. 9442

No. 4695.

December 2, 2008.

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.

Joelson Rochkind, New York (Kenneth Joelson of counsel), for appellant.

Fiedelman McGaw, Jericho (Ross P. Masler of counsel), for respondent.

Before: Mazzarelli, J.P., Saxe, Catterson, Renwick and Freedman, JJ.

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), 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). 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; Melendez v New York City Hous. Auth., 23 AD3d 211).