| Stewart v Canton-Potsdam Hosp. Found., Inc. |
| 2010 NY Slip Op 09317 [79 AD3d 1406] |
| December 16, 2010 |
| Appellate Division, Third Department |
| Doris A. Stewart et al., Appellants, v Canton-Potsdam HospitalFoundation, Inc., Respondent. |
—[*1] Martin, Ganotis, Brown, Mould & Currie, P.C., Syracuse (Brian M. Gargano of counsel), forrespondent.
Kavanagh, J. Appeal from an order of the Supreme Court (Demarest, J.), entered July 9, 2009 inSt. Lawrence County, which, among other things, granted defendant's motion for summary judgmentdismissing the complaint.
Plaintiff Doris A. Stewart (hereinafter plaintiff) alleges that, at approximately 6:00 p.m. on February19, 2004, she was walking into her place of work at a medical office when she slipped and fell on icethat had accumulated on the sidewalk in front of the building, which was owned and maintained bydefendant. Plaintiff and her husband, derivatively, commenced this action alleging that defendant wasnegligent in the way it maintained the premises and, in particular, in allowing a dangerous condition toexist on its premises by failing to keep this walkway free of ice. After discovery was completed, bothsides moved for summary judgment.[FN*]Supreme Court subsequently granted defendant's motion and dismissed the complaint. Plaintiffs nowappeal.
To prevail on its motion for summary judgment, defendant was required to establish that [*2]its property had been maintained in a reasonably safe condition, and thatit did not create a dangerous condition that caused plaintiff's fall or have actual or constructive notice ofthat condition (see Kearsey v Vestal Park,LLC, 71 AD3d 1363, 1364 [2010]; Managault v Rensselaer Polytechnic Inst., 62 AD3d 1196, 1197 [2009];Hagin v Sears, Roebuck & Co., 61AD3d 1264, 1264 [2009]). Here, plaintiff claims that ice formed in this area because the roof didnot have a gutter and water would drip from it onto bushes below which, in turn, would direct the wateronto the adjacent sidewalk. In support of its contention that it had no notice of the existence of thiscondition, defendant presented testimony of Howard Gay, an employee responsible for maintenance atthe building. Gay testified that, during the winter, he would check the parking lot and sidewalks of thebuilding at the beginning and the end of each day and perform whatever maintenance was requiredbased upon the conditions that he found to exist. Gay also stated that he would respond to callsindicating that an area on the property had become covered with ice and snow and would take whatsteps were necessary, including the use of ice melt and rock salt, to ensure that it was safe. As to thearea where plaintiff fell, Gay testified that he was not aware of ice forming on the sidewalk as the resultof water dripping from the roof and claims never to have received a report regarding the existence ofsuch a recurring condition. Moreover, there was no precipitation in the area on the day of plaintiff'saccident, and Gay denied receiving any report that day that icy conditions existed anywhere on thepremises. Finally, plaintiff has acknowledged that she had walked in the area where she fell an hourprior to the accident and did not notice any ice or snow on the sidewalk. She also recalled that between30 to 40 patients had been seen in her office that day, and no one made any complaints regarding thewalkway's condition or that it was covered with ice. This evidence served to shift the burden toplaintiffs to establish that a question of fact exists as to whether defendant had notice—eitheractual or constructive—of the icy condition on the sidewalk prior to her fall (see Brown v Haylor, Freyer & Coon, Inc.,60 AD3d 1188, 1189 [2009]).
In this regard, we note that it is not enough for plaintiffs to show that defendant was generallyaware "of the existence of a potentially dangerous condition" on the property (Lyons v Cold BrookCr. Realty Corp., 268 AD2d 659, 660 [2000]; see Pierson v North Colonie Cent. School Dist., 74 AD3d 1652, 1654[2010]) and that "[p]roof of regular inspections and maintenance of the area inquestion—including an inspection and any remedial action just prior to the incident—isordinarily sufficient to satisfy a defendant's burden of showing no notice of a dangerous condition"(Hagin v Sears, Roebuck & Co., 61 AD3d at 1266; see Tucci v Stewart's Ice CreamCo., 296 AD2d 650, 650-651 [2002], lv denied 98 NY2d 615 [2002]; La Duke vAlbany Motel Enters., 282 AD2d 974, 975 [2001]; Van Winkle v Price Chopper OperatingCo., 239 AD2d 692, 693 [1997]). In short, to prevail, plaintiffs must present competent evidenceestablishing that defendant knew, or should have known, of the existence of the specific condition thatthey claim caused this accident (see Pierson v North Colonie Cent. School Dist., 74 AD3d at1654-1655; Mosquera v Orin, 48 AD3d935, 936-937 [2008]; Martin v RPAssoc., 37 AD3d 1017, 1018-1019 [2007]).
On that issue, plaintiff's own affidavit was submitted, as well as testimony of two coworkers, whoclaim to have advised defendant on numerous occasions prior to this accident that the sidewalksadjacent to the building were often slippery and covered with ice. While these witnesses did make suchcomplaints, none specifically notified defendant that water dripping from the roof onto the sidewalk wascreating a dangerous condition on the property and, in particular, in the area where plaintiff fell.Moreover, as previously noted, Gay testified that he was never told that ice formed on the sidewalkfrom water dripping from the roof and, in fact, denied that such a problem ever existed. Whiledefendant was aware that the sidewalk on its [*3]premises could, incertain conditions, become slippery and be covered with ice, this knowledge was "not sufficient, initself, to impute actual or constructive notice of any specific condition existing on the day of theaccident" (Mosquera v Orin, 48 AD3d at 937; see Cantwell v Rondout Sav. Bank, 55 AD3d 1031, 1032 [2008]).
Plaintiffs also claim that defendant created a dangerous condition on the property by not havinggutters on the roof of the building and, in that regard, submitted expert testimony to the effect that theabsence of gutters caused water to run onto the sidewalk that later froze into ice. However, this expertspecifically found that this icy condition would not have existed "if the bushes located in the planter bedplaced directly below the [b]uilding's rear roofline drip edge were reasonably and properly maintained(i.e., trimmed back)" and that the failure to maintain these bushes "was a competent producing cause ofthe walkway ice on which [plaintiff] fell." In that regard, we note that no evidence has been presentedas to the condition of these bushes on the date of plaintiff's accident or that they had not been properlymaintained causing water from the roof to flow onto the sidewalk. In short, the expert's opinion is basedon an assumption that enjoys no evidentiary support in the record (see Reid v Schalmont School Dist., 50 AD3d 1323, 1325 [2008];La Duke v Albany Motel Enters., 282 AD2d at 975). Therefore, having failed to submit anyproof that defendant created the condition that plaintiffs allege caused the fall, plaintiffs' claim wasproperly dismissed.
Spain, J.P., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *: Plaintiffs' motion was limited to theissue of defendant's liability.