| Cantwell v Rondout Sav. Bank |
| 2008 NY Slip Op 07842 [55 AD3d 1031] |
| October 16, 2008 |
| Appellate Division, Third Department |
| Ronald Cantwell, Appellant, v Rondout Savings Bank,Respondent. |
—[*1] Maynard, O'Connor, Smith & Catalinotto, Albany (Michael T. Snyder of counsel), forrespondent.
Stein, J. Appeal from an order of the Supreme Court (Work, J.), entered July 6, 2007 in UlsterCounty, which granted defendant's motion for summary judgment dismissing the complaint.
In February 2005, after exiting the bank, plaintiff slipped and fell on a small piece of ice on awalkway leading to defendant's parking lot. Plaintiff commenced this action against defendant seekingdamages for the injuries he sustained as a result of his fall. Defendant moved for summary judgmentdismissing the complaint. Supreme Court granted the motion and plaintiff now appeals. We affirm.
"For defendant[ ] to prevail on [its] summary judgment motion, [it is] 'required to establish as amatter of law that [it] maintained the property in question in a reasonably safe condition and that [it]neither created the allegedly dangerous condition existing thereon nor had actual or constructive noticethereof' " (Mokszki v Pratt, 13 AD3d709, 710 [2004], quoting Richardson v Rotterdam Sq. Mall, 289 AD2d 679, 679[2001]). Furthermore, "[c]onstructive notice requires a showing that the condition was visible andapparent and existed for a sufficient period of time prior to the accident to permit [the] defendant[ ] todiscover it and take corrective action" (Boyko v Limowski, 223 AD2d 962, 964 [1996]; see Torosian v Bigsbee Vil. HomeownersAssn., 46 AD3d 1314, 1315 [2007]).[*2]
Here, plaintiff argues that defendant failed to meet its burden ofestablishing its entitlement to judgment as a matter of law or, in the alternative, that plaintiff raised aquestion of fact regarding constructive notice. The testimony of Cynthia Tice, defendant's assistantvice-president and operations officer, established that defendant maintained the property in areasonably safe condition and that defendant had no notice of the ice on which plaintiff slipped. Ticetestified that defendant employed two maintenance persons who regularly cared for the grounds andthat defendant hired a contractor who removed snow and ice from the premises when necessary.According to Tice, bills from the contractor who removed snow demonstrated that the weather hadbeen clear for several days prior to the incident. Tice further testified that there was no precipitation onthe day the incident occurred, the area was otherwise free of snow and ice that day and defendant didnot create the condition. Even plaintiff testified that the ice was very small in size, he did not notice itwhen entering the bank and, in fact, he did not notice it until after he fell.
Based on the foregoing, defendant established its entitlement to summary judgment, shifting theburden to plaintiff to raise a question of fact requiring a trial (see CPLR 3212 [b]; Alvarez vProspect Hosp., 68 NY2d 320, 324, 326 [1986]; Zuckerman v City of New York, 49NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068[1979]). Plaintiff failed to do so. There was no evidence whatsoever that defendant created thecondition or that defendant had actual notice thereof. In addition, the evidence provided by plaintiff wasinsufficient to create a triable issue of fact as to constructive notice. Moreover, based on plaintiff's owntestimony, we agree with Supreme Court that plaintiff's arguments regarding a height differential and thebroken area in the curbing of the walkway are not relevant.
We have considered plaintiff's remaining contentions and find them to be unpersuasive.
Mercure, J.P., Spain, Carpinello and Malone Jr., JJ., concur. Ordered that the order is affirmed,with costs.