Anibal Rosa, et al., appellants, v Mendon Leasing Corporation, respondent. (Index No. 16731/11)

 

2014-03338

 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

 

2015 N.Y. App. Div. LEXIS 5796; 2015 NY Slip Op 05928

 

 

July 8, 2015, Decided

 

 

COUNSEL:  [*1] H. Bruce Fischer, P.C., Tappan, N.Y., for appellants.

 

Segal McCambridge Singer & Mahoney, Ltd., New York, N.Y. (James R. Callan and Jon Michael Dumont of counsel), for respondent.

 

JUDGES: RANDALL T. ENG, P.J., L. PRISCILLA HALL, SYLVIA O. HINDS-RADIX, HECTOR D. LASALLE, JJ. ENG, P.J., HALL, HINDS-RADIX and LASALLE, JJ., concur.

 

OPINION

 

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Bunyan, J.), dated December 11, 2013, which granted the defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On December 7, 2010, the injured plaintiff, Anibal Rosa, while climbing into the cargo area of a truck rented by his employer from the defendant, allegedly slipped and fell on a defect in the floor of the truck and sustained injuries. Subsequently, the injured plaintiff, and his wife suing derivatively, commenced this action to recover damages for personal injuries and loss of consortium. The defendant moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion.

The defendant established its prima facie entitlement to judgment [*2]  as a matter of law by submitting the deposition testimony of the injured plaintiff and a manager of the defendant, which established that the defendant neither created nor had actual or constructive notice of the alleged dangerous or defective condition on the floor of the truck (see Gordon v American Museum of Natural History, 67 NY2d 836, 492 N.E.2d 774, 501 N.Y.S.2d 646; Sinclair v Chau, 117 AD3d 713, 985 N.Y.S.2d 267; Cintron v New York City Tr. Auth., 61 AD3d 803, 804, 877 N.Y.S.2d 446).

In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923).

Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint.

ENG, P.J., HALL, HINDS-RADIX and LASALLE, JJ., concur.