| Mosquera v Orin |
| 2008 NY Slip Op 01474 [48 AD3d 935] |
| February 21, 2008 |
| Appellate Division, Third Department |
| Therese Mosquera et al., Appellants, v Robert Orin,Respondent. |
—[*1] Eisenberg & Kirsch, Saratoga Springs (Jeffrey D. Wait of counsel), for respondent.
Mercure, J.P. Appeals (1) from an order of the Supreme Court (Pulver, Jr., J.), enteredSeptember 8, 2006 in Greene County, which, among other things, ordered plaintiffs to paycertain costs to defendant's counsel, and (2) from an order of said court, entered May 23, 2007 inGreene County, which granted defendant's motion for summary judgment dismissing thecomplaint.
In March 2003, plaintiff Therese Mosquera (hereinafter plaintiff) was injured when sheslipped and fell on a pathway in front of defendant's residence. Plaintiff had been hired toperform housecleaning at the residence and was carrying a mop at the time of the incident. Snowhad been falling for approximately one hour, and one-quarter inch had accumulated on thepathway and surrounding areas. Plaintiff nevertheless attributed her fall to a patch of ice thatformed prior to commencement of the storm in progress.
Thereafter, plaintiff and her husband, derivatively, commenced this action, alleging thatdefendant was negligent in maintaining the pathway. In September 2006, Supreme Court directedplaintiffs to reimburse defendant for certain physician's fees allegedly incurred when plaintifffailed to appear for an independent medical examination scheduled by defendant's counsel. Thecourt subsequently granted defendant's motion for summary judgment dismissing the complaint.Plaintiffs appeal and we now reverse the order awarding fees, and affirm the order dismissing thecomplaint.
" 'It is axiomatic that landowners have a reasonable period of time to take corrective [*2]action of storm-related dangerous conditions after the cessation of astorm' " (Campagnano v Highgate Manor of Rensselaer, 299 AD2d 714, 715 [2002][citation omitted]; see Convertini v Stewart's Ice Cream Co., 295 AD2d 782, 783[2002]). Here, defendant satisfied his initial burden in connection with his motion for summaryjudgment by presenting undisputed evidence that there was a storm in progress at the time of theincident (see Parker v Rust Plant Servs.,Inc., 9 AD3d 671, 673 [2004]; Campagnano v Highgate Manor of Rensselaer,299 AD2d at 715). The burden therefore shifted to plaintiffs to establish that the accident wascaused by ice that existed prior to the storm—as they claim—rather thanprecipitation from the storm in progress (see Martin v Wagner, 30 AD3d 733, 735 [2006]; Campagnanov Highgate Manor of Rensselaer, 299 AD2d at 715; Lyons v Cold Brook Cr. RealtyCorp., 268 AD2d 659, 659-660 [2000]). "In addition, liability will not be imposed unlessdefendant[ ] had actual or constructive notice of the hazard[, and a] general awareness of theexistence of a potentially dangerous condition is not sufficient to constitute constructive notice"(Lyons v Cold Brook Cr. Realty Corp., 268 AD2d at 660 [citations omitted]; seeConvertini v Stewart's Ice Cream Co., 295 AD2d at 784).
Plaintiff stated in deposition testimony that she had not seen any ice prior to her fall, and hadconcluded that she fell on ice only because, after falling and losing consciousness, she could notmaintain her footing when she tried to get up. Her submitted meteorological report does notaddress the specific location of the accident or refute defendant's claim that plaintiff fell due toconditions created by the storm in progress. Moreover, there is no evidence to support plaintiffs'assertion that the slippery condition was created by puddles formed when water ran offdefendant's roof without gutters, collected on the pathway, and then froze to form ice on thepathway. This assertion—which is not supported by evidence that plaintiff observed anyfrozen puddles—is merely speculative and, thus, insufficient to defeat a motion forsummary judgment (see Parker v Rust Plant Servs., Inc., 9 AD3d at 673;Campagnano v Highgate Manor of Rensselaer, 299 AD2d at 716; Convertini vStewart's Ice Cream Co., 295 AD2d at 784). Finally, defendant's general awareness thatsmall puddles occasionally formed in the pathway and that the pathway was sometimes slipperyduring the winter is not sufficient, in itself, to impute actual or constructive notice of any specificcondition existing on the day of the accident (see Cardinale v Watervliet Hous. Auth.,302 AD2d 666, 667 [2003]; Convertini v Stewart's Ice Cream Co., 295 AD2d at 784;Chapman v Pounds, 268 AD2d 769, 770-771 [2000]; Wood v Converse, 263AD2d 860, 861 [1999]). Accordingly, Supreme Court properly granted defendant's motion forsummary judgment dismissing the complaint.
Inasmuch as the record is wholly silent regarding the propriety of defendant's request for feesincurred when plaintiff allegedly failed to appear for an independent medical examination (cf.Flynn v Debonis, 246 AD2d 852, 853 [1998]; Wolford v Cerrone, 184 AD2d 833,833-834 [1992]), we reverse the order awarding fees and remit for further development of therecord.
Spain, Rose, Lahtinen and Kane, JJ., concur. Ordered that the order entered September 8,2006 is reversed, on the law, without costs, and matter remitted to the Supreme Court for furtherproceedings not inconsistent with this Court's decision. Ordered that the order entered May 23,2007 is affirmed, without costs.