| Kaplan v DePetro |
| 2008 NY Slip Op 04474 [51 AD3d 730] |
| May 13, 2008 |
| Appellate Division, Second Department |
| Deborah Kaplan, Appellant, v Robin Habacht DePetro etal., Respondents. |
—[*1] Purcell & Ingrao, P.C., Mineola, N.Y. (Lynn A. Ingrao and Terrance Ingrao of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Richmond County (Gigante, J.), dated June 26, 2007, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff alleged that she slipped and fell on a patch of black ice in the defendants'driveway. A property owner will be held liable for damages sustained in a slip-and-fall accidentonly when it created the dangerous condition which caused the accident or had actual orconstructive notice thereof (seeRobinson v Trade Link Am., 39 AD3d 616 [2007]; Zabbia v Westwood, LLC, 18 AD3d 542 [2005]).
The defendants established their prima facie entitlement to judgment as a matter of law bydemonstrating that they neither created nor had actual or constructive notice of the icy conditionalleged to have caused the plaintiff's fall. The plaintiff failed to raise a triable issue of fact inopposition (see DeFalco v BJ'sWholesale Club, Inc., 38 AD3d 824 [2007]; Penny v Pembrook Mgt., 280 AD2d590 [2001]). The plaintiff's claim that the defendants' efforts to remove the ice and snow mayhave created the condition was speculative and unsupported by the evidence in the record (see Dwulit v Walters, 19 AD3d535 [2005]; Wilson v Prazza, 306 AD2d 466 [2003]).[*2]
Moreover, there was no proof to support the plaintiff'sclaim that the defendants had actual or constructive notice of the ice patch. General awarenessthat snow or ice may be present is legally insufficient to constitute notice of the particularcondition that caused the plaintiff's fall (see Piacquadio v Recine Realty Corp., 84 NY2d967 [1994]; Gordon v American Museum of Natural History, 67 NY2d 836 [1986];Carricato v Jefferson Val. Mall Ltd. Partnership, 299 AD2d 444 [2002]). Both theplaintiff and the deposed defendant testified that they did not see the patch of ice at any timebefore the accident. Based on this evidence, any finding as to when the ice patch developed couldonly be based on speculation (see Carricato v Jefferson Val. Mall Ltd. Partnership, 299AD2d 444 [2002]; Penny v Pembrook Mgt., 280 AD2d 590 [2001]). The plaintiff'saffidavit in opposition to the defendants' motion for summary judgment, in which she claimedthat she did not have an opportunity to look at the ground before she fell, contradicted her earliertestimony and, therefore, presented a feigned factual issue designed to defeat the defendants'motion (see Makaron v Luna Park Hous.Corp., 25 AD3d 770 [2006]; Stancil v Supermarkets Gen., 16 AD3d 402 [2005]).
Accordingly, the Supreme Court properly granted the defendants' motion for summaryjudgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557[1980]). Lifson, J.P., Ritter, Dillon and Leventhal, JJ., concur.