| Gilbert v Evangelical Lutheran Church in Am. |
| 2007 NY Slip Op 07094 [43 AD3d 1287] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| Sherrianne Gilbert, Respondent, v Evangelical Lutheran Church inAmerica et al., Defendants, and Prince of Peace Lutheran Church,Appellant. |
—[*1] Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), enteredFebruary 14, 2007 in a personal injury action. The order denied the motion of defendant Prince ofPeace Lutheran Church for summary judgment dismissing the complaint against it.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyreversed on the law without costs, the motion is granted and the complaint against defendantPrince of Peace Lutheran Church is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustainedwhen she slipped and fell on black ice in a parking lot owned by Prince of Peace LutheranChurch (defendant church). The record establishes that, upon arriving at defendant church atapproximately 11:00 a.m., plaintiff parked in a handicapped parking space and had no difficultywalking into defendant church. The record further establishes that, upon leaving defendantchurch at approximately 12:15 p.m., plaintiff slipped on black ice and fell next to her vehicle.Supreme Court erred in denying the motion of defendant for summary judgment dismissing thecomplaint against it. Plaintiff, as limited by her brief on appeal, contends only that defendantchurch had constructive notice of the allegedly dangerous condition, thus abandoning anycontention that defendant church created the condition or had actual notice of it (see generallyCiesinski v Town of Aurora, 202 AD2d 984 [1994]). We conclude that defendant church metits initial burden of establishing that it did not have constructive notice of the allegedly dangerouscondition (see Lane v Wilmorite,Inc., 1 AD3d 907 [2003]; Carricato v Jefferson Val. Mall Ltd. Partnership, 299AD2d 444 [2002]), and plaintiff failed to raise an issue of fact (see generally Zuckerman vCity of New York, 49 NY2d 557, 562 [1980]).
In support of its motion, defendant church submitted excerpts from the depositions ofplaintiff and three witnesses. According to the deposition testimony of plaintiff, she had norecollection of the weather conditions that day, nor did she recall the condition of the parking lotupon either entering or exiting defendant church. The pastor of defendant church testified at his[*2]deposition that there was no ice anywhere in the parking lotwhen he arrived at 8:30 a.m., and the choir director of defendant church testified at his depositionthat the parking lot was dry when he arrived at 9:30 a.m. The pastor further testified that hebelieved that the black ice formed from water that had dripped from the back of plaintiff'svehicle. We thus conclude that defendant church met its initial burden with respect toconstructive notice by establishing that the ice formed after plaintiff had entered the church anddid not exist for a long enough period of time to permit the employees of defendant church todiscover and remedy it (see Gordon v American Museum of Natural History, 67 NY2d836, 837-838 [1986]; Lane, 1 AD3d 907 [2003]). The deposition transcripts submitted byplaintiff in opposition to the motion established that, although there was no salt on the parkinglot, there was no need for salt because there was no precipitation and the parking lot was dry thatmorning. Plaintiff failed to submit any evidence raising an issue of fact whether the ice hadformed for a sufficient length of time prior to her accident to require the employees of defendantchurch to discover and remedy it (see Gordon, 67 NY2d at 838; Lane, 1 AD3d907 [2003]), and her expert's affidavit was speculative on the issue of notice (see Martin v RP Assoc., 37 AD3d1017, 1019 [2007]). Indeed, we note that the affidavit of plaintiff's expert "merely addressedgeneral conditions in the vicinity rather than the origin of the specific ice on which the plaintifffell" (Reagan v Hartsdale TenantsCorp., 27 AD3d 716, 718 [2006]). Present—Scudder, P.J., Martoche, Centra,Green and Pine, JJ.