Robert C. Piscitello et al., Respondents, v. City of Tonawanda, Appellant

Robert C. Piscitello et al., Respondents, v City of Tonawanda, Appellant. [684 NYS2d 89] [MAJORITY] —Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Wendy Johnson Piscitello (plaintiff) commenced this action seeking damages for personal injuries she sustained while walking down a hill at Niawanda Park in the City of Tonawanda. Rather than walking into the park using one of the paved entrances, plaintiff descended the hill into the park on what she described as a well worn path. Plaintiff alleged that an indented or “gouged out” area at the bottom of the hill, in addition to the gravel and stones there, caused her to fall and that defendant had actual or constructive notice of that allegedly dangerous condition. Supreme Court erred in denying defendant’s motion for summary judgment dismissing the complaint. Defendant met its initial burden by submitting evidence that it had received no complaints about the area and had no reported injuries until plaintiffs accident, and plaintiffs failed to raise a triable issue of fact whether defendant had actual or constructive notice of the allegedly dangerous condition (see, Eddy v Tops Friendly Mkts., 91 AD2d 1203, affd 59 NY2d 692; Merlo v Zimmer, 231 AD2d 952, 953). (Appeal from Order of Supreme Court, Erie County, Notaro, J. — Summary Judgment.) Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Balio, JJ.