WILLIAM F. MASTRO
Domenic M. Recchia, Jr. (Arnold E. DiJoseph, P.C., New York, N.Y. [Arnold E. DiJoseph III], of counsel), for appellant. Thomas M. Bona, P.C., White Plains, N.Y. (Elliot Gaztambide, Jr., and James Miller of counsel), for respondent.
WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Graham, J.), dated April 5, 2012, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly sustained injuries when a case of iced tea that he sought to retrieve from a display fell on him. As a result, the plaintiff commenced this action against the defendant, alleging that the display was dangerously high. The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint.
In a premises liability case, the plaintiff must establish the existence of a defective condition and that the defendant either created or had actual or constructive notice of the defect ( see Caldwell v. Pathmark Stores, Inc., 29 A.D.3d 847, 816 N.Y.S.2d 514;Crawford v. Pick Quick Foods, 300 A.D.2d 431, 750 N.Y.S.2d 884). Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that no dangerous condition existed ( see Caldwell v. Pathmark Stores, Inc., 29 A.D.3d 847, 816 N.Y.S.2d 514;Marusevich v. Great Atl. & Pac. Tea Co., 309 A.D.2d 839, 766 N.Y.S.2d 78;Crawford v. Pick Quick Foods, 300 A.D.2d 431, 750 N.Y.S.2d 884;Ruggiero v. Waldbaums Supermarkets, 242 A.D.2d 268, 661 N.Y.S.2d 37). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact ( see Caldwell v. Pathmark Stores, Inc., 29 A.D.3d 847, 816 N.Y.S.2d 514). The plaintiff's contention that the motion should have been denied on the ground that the defendant spoliated key evidence is without merit ( see Huezo v. Silvercrest, 68 A.D.3d 820, 890 N.Y.S.2d 125;Deveau v. CF Galleria at White Plains, LP, 18 A.D.3d 695, 796 N.Y.S.2d 119). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.