Polamino v. Paradise Pac. Enters. Corp. , 2020 NY Slip Op 07289 ( 2020 )

Polamino v Paradise Pac. Enters. Corp. (2020 NY Slip Op 07289)

Polamino v Paradise Pac. Enters. Corp.

2020 NY Slip Op 07289

Decided on December 03, 2020

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: December 03, 2020
Before: Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.

Index No. 158502/16 Appeal No. 12540 Case No. 2020-02512

[*1]John A. Polamino, Plaintiff-Appellant,

v

Paradise Pacific Enterprises Corp., Defendant-Respondent.

Teperman & Teperman, PLLC, New York (Jay S. Campbell of counsel), for appellant.

Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondent.

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered December 11, 2019, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant met its prima facie burden by demonstrating that it did not have constructive notice of the piece of plastic on its sidewalk that caused plaintiff to trip and fall. Defendant submitted plaintiff's deposition testimony that he walked past the accident location about 20 minutes before he fell and did not see the plastic piece, and had no knowledge of its presence until after the accident (see Early v Hilton Hotels Corp., 73 AD3d 559, 561-562 [1st Dept 2010]; Frank v Time Equities, 292 AD2d 186, 186-187 [1st Dept 2002]). In opposition, plaintiff failed to raise a triable issue of fact as to how long the plastic piece was on the sidewalk.

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

ENTERED: December 3, 2020