Defendant, the City of New York (hereinafter "City") moves inter alia for summary judgment, dismissing plaintiff's verified complaint. Plaintiff cross-moves inter alia to compel discovery.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff [*2]on August 9, 2011 when he was allegedly caused to fall due to an insufficient amount of space between the exercise equipment in the gym of the 100th precinct of the NYPD, located at 92-24 Rockaway Beach Boulevard, in the County of Queens, City and State of New York.

As an initial matter, plaintiff's claim that defendant's motion is untimely because it was not filed within 120 days from the date plaintiff filed his note of issue is entirely without merit.

CPLR 3212(a) requires motions for summary judgment to be made no later than 120 days after the filing of the note of issue, except with leave of the court on good cause shown (Brill v. City of New York, 2 NY3d 648, 652 [2004]).

Contrary to plaintiff's contentions, it is well settled that a motion is made when the notice of motion is served (See Lennard v. Khan, 69 AD3d 812, 813 [2d Dept. 2010] Rivera v. Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 561 [2d Dept. 2006]).

Plaintiff filed his Note of Issue on April 1, 2013. As such, contrary to plaintiff's contention, any motion for summary judgment was required to be made no later than July 30, 2013. The affirmation of service annexed to the City's summary judgment motion demonstrates that the motion was served on July 30, 2013 and, therefore, is timely.

On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate an material issues of fact from the case . . ." (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 [1985]). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).

New York General Municipal Law (GML) § 205-e provides a police officer with the right to recover for injuries sustained "while in the discharge or performance at any time or place of any duty imposed by the police commissioner, police chief or other superior officer of the police department."

The City has established its entitlement to judgment on plaintiff's GML § 205-e cause of action by submitting inter alia plaintiff's deposition testimony that the accident occurred while he was using the gym during his lunch break and that he was not under any duty to use the gym (See, e.g., Foulkes v. City of New York, 261 AD2d 283, 284 [1st Dept. 1999] cf. Ferriolo v. City of New York, 72 AD3d 490, 490-91 [1st Dept. 2010]).

Plaintiff fails to raise a triable issue of fact in opposition. Contrary to plaintiff's contention, the mere fact that he was wearing his uniform and "on call" at the time of the accident does not demonstrate that he was injured while in the discharge or performance of a duty imposed on him. [*3]

The City also contends it is entitled to judgment on plaintiff's common law negligence cause of action.

"A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it" (Aguirre v. Paul, 54 AD3d 302, 303 [2d Dept. 2009] (quoting Prusak v. New York City Hous. Auth., 43 AD3d 1022 [2d Dept. 2007])).

The City has established that it did not create the allegedly defective condition by submitting inter alia the deposition testimony of Police Officer Anthony Lenenmann, a police officer employed in the Building maintenance section of the New York Police Department (NYPD) that in his experience the precinct gyms are set up by individual officers on a voluntary basis, not the NYPD or the City.

Plaintiff fails to raise a triable issue of fact in opposition. As the police officers were acting on a voluntary basis in setting up the gym, the City cannot be held liable for their actions in allegedly creating the defective condition (See Donohue v. Young, 298 AD2d 354 [2d Dept. 2002]).

The City has likewise established that it did not have actual or constructive notice by submitting inter alia Officer Lenermann's testimony that the maintenance section did not receive any complaints or maintenance issues relating to the gym precinct prior to plaintiff's accident.

Plaintiff's contention that the motion must be denied because the City has failed to submit evidence regarding when the gym was last inspected is without merit.

A defendant can only be charged with constructive notice of a fact that would have been disclosed by a reasonable inquiry if there are circumstances that indicate the necessity of making such an inquiry (See Majer v. Schmidt, 169 AD2d 501, 503 [1st Dept. 1991]). As the precinct gym was set up and maintained by individual officers on a voluntary basis, there are no circumstances to indicate to the City the necessity of inspecting the subject area.

Moreover, as there is no evidence demonstrating how long the subject condition existed prior to the accident, there is no basis to permit an inference of constructive notice (See Anderson v. Cent. Valley Realty Co., 300 AD2d 422, 423 [2d Dept. 2002]).

Plaintiff has likewise failed to demonstrate his entitlement to the alleged outstanding discovery demands.

Plaintiff filed his note of issue on April 1, 2013 and specifically certified that "all discovery proceedings now known to be necessary" were complete and that there are no outstanding requests for discovery. As such, plaintiff has waived any and all further discovery in [*4]this action (See Simpson v. City of New York, 10 AD3d 601, 602 [2d Dept. 2004]).

Plaintiff has failed to demonstrate the existence of unusual and unanticipated circumstances to justify further post note of issue discovery. Plaintiff's lack of diligence in seeking this discovery earlier is insufficient (See Eskenazi v. Mackoul, 92 AD3d 828, 829 [2d Dept. 2012]).

Accordingly, defendant's motion is granted, in its entirety, and plaintiff's complaint is dismissed as asserted against the City of New York. Plaintiff's cross-motion is denied, in its entirety.

February 7, 2014 ____________________

J.S.C.