| Wylie v Brooks/Eckerd Pharmacy |
| 2008 NY Slip Op 01946 [49 AD3d 533] |
| March 4, 2008 |
| Appellate Division, Second Department |
| Katherine Wylie et al., Appellants, v Brooks/EckerdPharmacy et al., Respondents. |
—[*1] Barry, McTiernan & Moore, White Plains, N.Y. (Laurel A. Wedinger of counsel), forrespondent Brooks/Eckerd Pharmacy. Bivona & Cohen, P.C., New York, N.Y. (Anthony J. McNulty of counsel), for respondentMid-State Management Corp.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Westchester County (Donovan, J.),entered February 16, 2007, as granted that branch of the motion of the defendant Brooks/EckerdPharmacy and that branch of the cross motion of the defendant Mid-State Management Corp.which were for summary judgment dismissing the complaint insofar as asserted against each ofthem.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
The plaintiff Katherine Wylie (hereinafter the plaintiff) allegedly was injured when sheslipped and fell on ice on a sidewalk adjacent to the premises leased and operated by thedefendant Brooks/Eckerd Pharmacy (hereinafter Eckerd) and owned by the defendant Mid-StateManagement Corp. (hereinafter Mid-State). The plaintiff and her husband commenced this actionagainst Eckerd and Mid-State. In the order appealed from, the Supreme Court, inter alia, grantedthose branches of Eckerd's motion and Mid-State's cross motion which were for summaryjudgment dismissing the complaint insofar as asserted against them. We affirm the order insofaras appealed from.
Eckerd and Mid-State established their prima facie entitlement to summary judgment by[*2]demonstrating that they neither created nor had actual orconstructive notice of the alleged icy condition that caused the plaintiff's fall (see Voss vD&C Parking, 299 AD2d 346 [2002]; Carricato v Jefferson Val. Mall Ltd. Partnership,299 AD2d 444 [2002]; DeVivo v Sparago, 287 AD2d 535 [2001]). The evidenceshowed, among other things, that the subject accident occurred at 9:15 a.m., approximately onehour after the store opened, and that the store manager had not previously observed any ice onthe sidewalk. Moreover, the defendants tendered meteorological evidence showing that, on theday before the accident, the weather had been rainy and mild. In fact, the temperature remainedabove freezing until approximately 6:00 a.m. on the morning of the accident. Consequently,Eckerd and Mid-State established, prima facie, that the alleged icy condition had not existed for asufficient length of time such that they should be charged with notice of it.
In opposition, the plaintiffs failed to raise a triable issue of fact. Their contention that the icewas a long-standing condition that should have been readily observed by the store's employeesprior to opening was purely speculative and, therefore, insufficient to raise a triable issue of fact(see Bonney v City of New York, 41AD3d 404 [2007]; Katz v PathmarkStores, Inc., 19 AD3d 371, 372 [2005]; Carricato v Jefferson Val. Mall Ltd.Partnership, 299 AD2d at 444-445). Accordingly, the Supreme Court properly grantedsummary judgment dismissing the complaint against the defendants.
In light of our determination, we need not address the defendants' remaining contentions.Skelos, J.P., Fisher, Covello and Eng, JJ., concur.