| O'Connor v Consolidated Edison Co. of N.Y., Inc. |
| 2008 NY Slip Op 07718 [55 AD3d 356] |
| October 9, 2008 |
| Appellate Division, First Department |
| Jennifer O'Connor, Appellant, v Consolidated EdisonCompany of New York, Inc., Respondent. |
—[*1] Richard W. Babinecz, New York (Helman R. Brook of counsel), for respondent.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered on or about October 30,2007, which, in an action for personal injuries sustained in a slip and fall on an ice patch in apublic roadway abutting a vacant lot owned by defendant, granted defendant's motion forsummary judgment dismissing the complaint, unanimously affirmed, without costs.
No issue of fact exists as to whether the ice patch was created by defendant's structures ondefendant's abutting lot that allegedly diverted the flow of rain water from the lot (see Roarkv Hunting, 24 NY2d 470, 475 [1969]). Log structures on the lot intended as retaining wallsto manage the flow of rain water down the sloping lot did not contain the water. It does notappear, however, from plaintiff's expert's affidavit or report that this failure resulted in anythingmore than the water taking the natural course it would have taken down the slope and onto thestreet had the structures never been placed on the lot. Since defendant had no duty "to adoptmeasures to prevent the flowage of surface water from [its] premises" in the first place (seeTremblay v Harmony Mills, 171 NY 598, 601 [1902]), it cannot be held liable for havingadopted measures that were merely ineffective. We have considered plaintiff's other argumentsand find them unavailing. Concur—Andrias, J.P., Nardelli, McGuire, Moskowitz andRenwick, JJ.