Risucci v. Zeal Management Corp.

• Decision Date: 08 February 1999
• Parties: DOROTHY RISUCCI, Appellant,<BR>v.<BR>ZEAL MANAGEMENT CORP. et al., Defendants, and<BR>CONDO UNITS L.P. et al., Respondents.
• Court: New York Supreme Court — Appellate Division

258 A.D.2d 512

685 N.Y.S.2d 280

DOROTHY RISUCCI, Appellant,

v.ZEAL MANAGEMENT CORP. et al., Defendants, andCONDO UNITS L.P. et al., Respondents.

Decided February 8, 1999.

O'Brien, J.P., Sullivan, Krausman and Florio, JJ., concur.

Ordered that the order is affirmed, with costs.

On August 21, 1993, the plaintiff tripped on a protruding screw that was part of the pool cover system located at the condominium complex where she resided. The pool was owned, operated, maintained, managed and/or controlled by the defendants. The defendants Condo Units L.P., and Andrew Jackson Condominium (hereinafter the respondents), moved for summary judgment dismissing the complaint insofar as asserted against them because, according to the condominium's superintendent's affidavit, they had neither actual nor constructive notice of the alleged dangerous condition. In their motion, the respondents demanded that the plaintiff serve her answering papers at least seven days before the time the motion was noticed to be heard since they served their motion at least 12 days prior to that time, pursuant to CPLR 2214 (b). However, the plaintiff did not serve her opposition papers until the return date of the motion. The Supreme Court refused to consider the plaintiff's untimely opposition papers and granted summary judgment to the respondents. The plaintiff appeals.

The Supreme Court did not improvidently exercise its discretion by refusing to consider the plaintiff's opposition papers, despite no showing of prejudice to the respondents, as she failed to provide a valid excuse for the late service (see, Bush v Hayward, 156 AD2d 899; Romeo v Ben-Soph Food Corp., 146 AD2d 688).

Even considering the plaintiff's opposition, the respondents established that they neither created the alleged dangerous condition nor had actual or constructive notice of it, and the plaintiff failed to rebut that showing (see, Curran v Fresh Meadows Country Club, 251 AD2d 531; Goldman v Waldbaum, Inc., 248 AD2d 436; Perrone v Waldbaum, Inc., 252 AD2d 517).