Lara v. Tuck-It-Away at 135th St., Inc. ( 2021 )

Lara v Tuck-It-Away at 135th St., Inc. (2021 NY Slip Op 03664)

Lara v Tuck-It-Away at 135th St., Inc.

2021 NY Slip Op 03664

Decided on June 10, 2021

Appellate Division, First Department

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 and Entered: June 10, 2021
Before: Manzanet-Daniels, J.P., Gische, Oing, Shulman, JJ.

Index No. 156050/16 Appeal No. 14037 Case No. 2021-00209

[*1]Duval Lara, Plaintiff-Appellant,

v

Tuck-It-Away at 135th Street, Inc., Defendant-Respondent, Tuck-It-Away of Manhattan, Inc., et al., Defendants. [And A Third-Party Action]

Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen and Greg Freedman of counsel), for appellant.

Black Marjieh & Sanford LLP, Elmsford (Dana Khalife-Marjieh of counsel), for respondent.

Order, Supreme Court, New York County (David B. Cohen, J.), entered January 22, 2020, which denied plaintiff's motion for partial summary judgment on liability, unanimously affirmed, without costs.

Plaintiff's notice of appeal filed on December 30, 2020 was timely because the time to file this notice commenced upon service of a copy of the order with notice of entry on December 30, 2020, and not when the order was transmitted and entered into the NYSCEF site on January 21, 2020 (see 22 NYCRR 202.5-b[h][2]).

Plaintiff's motion for partial summary judgment on the issue of defendant's negligence was properly denied in that questions of fact remain as to whether the alleged condition qualifies as an actionable defect (see Hardsog v Price Chopper Operating Co., Inc., 99 AD3d 1130, 1131 [3d Dept 2012]), and whether plaintiff's fall and alleged injuries were related to such condition (see generally Kesselman v Lever House Rest., 29 AD3d 302, 303-304 [1st Dept 2006]).

We have considered plaintiff's remaining arguments and find them unavailing.

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

ENTERED: June 10, 2021