| Buroker v Country View Estate Condominium Assn., Inc. |
| 2008 NY Slip Op 06948 [54 AD3d 795] |
| September 16, 2008 |
| Appellate Division, Second Department |
| Marion Buroker et al., Respondents, v Country View EstateCondominium Association, Inc., et al., Appellants, et al., Defendants. (And a Third-PartyAction.) |
—[*1] Siben & Siben LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants Country ViewEstate Condominium Association, Inc., and Sound View Property Management, Inc., appeal, aslimited by their brief, from so much of an order of the Supreme Court, Suffolk County (R. Doyle,J.), dated June 7, 2007, as denied that branch of their motion which was for summary judgmentdismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
The injured plaintiff, Marion Buroker, allegedly slipped and fell on ice and snow on asidewalk within a complex owned by the defendant Country View Estate CondominiumAssociation, Inc., and managed by the defendant Sound View Property Management, Inc.(hereinafter collectively the defendants), in Middle Island. "In slip-and-fall cases involving snowand ice, a property owner is not liable unless he or she created the defect, or had actual orconstructive notice of its existence" (Gilv Manufacturers Hanover Trust Co., 39 AD3d 703, 704 [2007]).
Here, the Supreme Court properly denied that branch of the defendants' motion which wasfor summary judgment dismissing the complaint insofar as asserted against them. In support oftheir motion, the defendants submitted, inter alia, an expert affidavit to establish that, on the dateof the accident, there was no snow or ice present where the injured plaintiff fell, and thus they didnot have notice of a dangerous ice and snow condition. The expert allegedly reviewedclimatological data gathered from other towns, but his affidavit was insufficient to establish,prima [*2]facie, that there was no snow or ice on the ground inMiddle Island (see Ellers v HorwitzFamily Ltd. Partnership, 36 AD3d 849, 851-852 [2007]; Calix v New York City Tr. Auth., 14AD3d 583, 584 [2005]; Howard v J.A.J. Realty Enters., 283 AD2d 854, 855-856[2001]). Under the circumstances here, the defendants failed to establish, prima facie, that theydid not have actual or constructive notice of the allegedly dangerous condition. Since thedefendants failed to meet their initial burden, we need not review the sufficiency of the plaintiffs'opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852[1985]). Prudenti, P.J., Skelos, Covello and Balkin, JJ., concur. [See 2007 NY Slip Op31635(U).]