Calendar Date: June 6, 2018Before: Devine, J.P., Clark, Mulvey, Rumsey and Pritzker, JJ.__________David A. Longeretta, Utica, for appellant.Hinman Straub PC, Albany (David T. Luntz of counsel), forrespondent.__________Pritzker, J.Appeal from a judgment of the Supreme Court (Hartman, J.),entered July 13, 2016 in Albany County, which granted defendant’smotion for summary judgment dismissing the complaint.Plaintiff commenced this negligence action seeking damagesfor injuries she sustained in 2002 while using an escalator,which was owned, operated and maintained by defendant, at thethen Pepsi Arena, that allegedly sped up, causing her toviolently fall backwards. Following joinder of issue anddiscovery, defendant moved for summary judgment dismissing thecomplaint, which plaintiff opposed. Supreme Court granteddefendant’s motion, finding, among other things, that plaintiffdid not raise a triable issue of fact as to whether defendant hadconstructive notice of the specific dangerous condition thatresulted in plaintiff’s injuries. Plaintiff appeals, and weaffirm.Defendant, as the moving party, bears “‘the initial burdenof demonstrating that it had maintained the property in areasonably safe condition and that it did not create or haveactual or constructive notice of the specific allegedly dangerouscondition that resulted in plaintiff’s injury’” (Firment v Dick’sSporting Goods, Inc., 160 AD3d 1259, 1259-1260 [2018], quotingBeck v Stewart’s Shops Corp., 156 AD3d 1040, 1041 [2017]).“Constructive notice is established where the condition is‘visible and apparent and has existed for a sufficient period oftime prior to the accident to permit a defendant to discover itand take corrective action’” (Beck v Stewart’s Shops Corp., 156AD3d at 1041 [internal brackets omitted], quoting Tate v GolubProps., Inc., 103 AD3d 1080, 1081 [2013]). “A defendant maydemonstrate a lack of constructive notice by offering evidence asto when the area in question was last cleaned or inspectedrelative to the time when the plaintiff fell” (Beck v Stewart’sShops Corp., 156 AD3d at 1041 [internal quotation marks andcitations omitted]).In support of its motion, defendant offered the depositiontestimony of Douglas McClaine, the director of operations at thearena at the time of the accident. McClaine testified that theescalators were regularly maintained and routine repairs wereconducted, and there were no prior complaints about the escalatorsteps and handrails moving at different speeds. In fact,McClaine’s testimony was corroborated by invoices and serviceorders that plaintiff submitted that demonstrated that theescalators had been regularly maintained and repaired.Therefore, defendant met its initial burden of establishing itsentitlement to summary judgment by demonstrating that itmaintained the property in a reasonably safe condition and thatit did not create or have actual or constructive notice of thealleged dangerous condition (see Beck v Stewart’s Shops Corp.,156 AD3d at 1041; McGrath v George Weston Bakeries, Inc., 117AD3d 1303, 1304 [2014]).We find no merit to plaintiff’s contention that theextensive history of maintenance and repairs raises a question offact as to whether defendant had notice of the alleged dangerouscondition. None of the maintenance and repair records submittedby plaintiff indicate that the escalators had issues withspeeding up, which is the condition of which plaintiff complains(see Beck v Stewart’s Shops Corp., 156 AD3d at 1042-1043; Stewartv Canton-Potsdam Hosp. Found., Inc., 79 AD3d 1406, 1407-1408[2010]). As aptly stated by Supreme Court, these submissionsestablished, at best, a “general awareness” by defendant ofcertain problems with the escalators, but such information isinsufficient as a matter of law to raise a triable issue of factregarding actual or constructive notice (see Mack v New YorkYankees Partnership, 69 AD3d 542, 542 [2010]). We findplaintiff’s claim that she raised a triable issue of fact throughthe doctrine of res ipsa loquitur similarly unavailing. Inasmuchas plaintiff failed to present proof that defendant was inexclusive control of the escalator (see generally Morejon v RaisConstr. Co., 7 NY3d 203, 209 [2006]; Brumberg v Cipriani USA,Inc., 110 AD3d 1198, 1200 [2013]) or that the accident was thekind that does not ordinarily occur in the absence of negligence(see generally Di Santo v County of Westchester, 210 AD2d 628,629 [1994]), Supreme Court properly determined that res ipsaloquitur is inapplicable.Devine, J.P., Clark, Mulvey and Rumsey, JJ., concur.ORDERED that the judgment is affirmed, without costs.ENTER:Robert D. MaybergerClerk of the Court
