| Avina v Verburg |
| 2008 NY Slip Op 00603 [47 AD3d 1188] |
| January 31, 2008 |
| Appellate Division, Third Department |
| Judith Avina, Appellant, v Thomas R. Verburg et al.,Respondents. |
—[*1] Ryan & Smallacombe, P.L.L.C., Albany (David T. Luntz of counsel), forrespondents.
Mercure, J.P. Appeal from an order of the Supreme Court (McDonough, J.), entered May 4,2007 in Albany County, which granted defendants' motion for summary judgment dismissing thecomplaint.
In April 2003, plaintiff was injured when she slipped on a concrete sidewalk that led fromexterior stairs to the entrance of defendants' residence. At the time of the incident, moderatefreezing rain was falling and plaintiff was attempting to deliver a fruit basket from her employer.The basket weighed approximately 12 to 14 pounds and had no handle. Plaintiff testified at herexamination before trial that she successfully climbed the stairs but, once she stepped onto thewalkway, she began slipping and realized that ice was present. Thereafter, plaintiff commencedthis action, alleging that she was injured as a result of defendants' negligence in maintaining theirdriveway and concrete walk areas. Following joinder of issue, Supreme Court granteddefendants' motion for summary judgment and dismissed the complaint. Plaintiff appeals and wenow affirm.
Plaintiff asserts that defendants failed to meet their initial burden of demonstratingentitlement to summary judgment because they did not establish that the exterior stairs werecompliant with applicable building codes. Plaintiff relies upon defendants' alleged violation ofthose codes as evidence of negligence (see Chapman-Raponi v Vescio, 11 AD3d 1042, 1043 [2004]; Viscusi v Fenner, 10 AD3d 361,361-362 [2004]; see also Brigandi v Piechowicz, 13 [*2]AD3d 1105, 1105-1106 [2004]). While plaintiff is correct thatdefendants failed to establish that the stairs were not in violation of any applicable buildingcodes, we agree with Supreme Court that defendants nevertheless met their burden bydemonstrating prima facie that the lack of a handrail on the stairs was not a proximate cause ofplaintiff's fall. In connection with their motion for summary judgment, defendants relied uponplaintiff's deposition testimony and her markings on photographs demonstrating that she slippedon defendants' concrete walkway—not on the stairs—and that she fell towards theirresidence, well away from the stairs. Both plaintiff's deposition testimony and an affidavit of alicensed meteorologist demonstrated that freezing rain falling at the time of the accident createdthe icy condition that caused plaintiff to slip. Inasmuch as "[a] party in possession or control ofreal property has a reasonable period of time after the cessation of a storm in which to takeprotective measures to correct storm-created hazardous ice and snow conditions" (Fusco vStewart's Ice Cream Co., 203 AD2d 667, 668 [1994]; accord Convertini v Stewart's IceCream Co., 295 AD2d 782, 783 [2002]), this evidence satisfied defendants' initial burden ontheir motion for summary judgment.
In order to create a triable issue of fact in response, "plaintiff was obligated to provide proof'sufficient to permit a finding of proximate cause based not upon speculation, but upon thelogical inferences to be drawn from the evidence' " (Larkins v Hayes, 267 AD2d 524, 525[1999], quoting Ellis v County of Albany, 205 AD2d 1005, 1007 [1994]). That is,plaintiff must demonstrate that "defendant[s'] [alleged] negligence was a substantial cause of theevents which produced the injury" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315[1980]). Moreover, "mere conclusions, expressions of hope or unsubstantiated allegations orassertions are insufficient" to overcome a prima facie showing of entitlement to summaryjudgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In that regard,plaintiff asserted that she slipped while ascending defendants' stairway, and relied upon herdeposition testimony that she normally uses a handrail while ascending stairs and an expertaffidavit concluding that the stairs were in violation of applicable building codes because theydid not have a handrail. As noted above, however, plaintiff's deposition testimony and markingson photographs illustrate that she had successfully climbed the stairs and was on defendants'walkway when she slipped. Accordingly, "[t]he possibility that handrails would have prevented[plaintiff's] fall is unfounded speculation, which is insufficient to deny summary judgment," andSupreme Court properly dismissed the complaint (Sauer v Mannino, 309 AD2d 1053,1054 [2003]; see Daria v Beacon Capital Co., 299 AD2d 312, 312 [2002]; Larkins vHayes, 267 AD2d at 525-526; see also Ellis v County of Albany, 205 AD2d at1007-1008; cf. Scala v Scala, 31AD3d 423, 424-425 [2006]; Courtney v Abro Hardware Corp., 286 App Div 261,262 [1955], affd 1 NY2d 717 [1956]).
Peters, Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the order is affirmed, withcosts.