| Aurilia v Empire Realty Assoc. |
| 2009 NY Slip Op 00485 [58 AD3d 773] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Jennifer Aurilia, Appellant, v Empire Realty Associates,Respondent. |
—[*1] Barry, McTiernan & Moore, New York, N.Y. (Laurel A. Wedinger of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Richmond County (McMahon, J.), dated October 9, 2007, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly slipped and fell on a patch of ice on a handicap access pedestrianramp which led to a parking lot of a shopping center owned by the defendant. The plaintiffwalked down the ramp and then walked back up the ramp soon thereafter, and fell. She did notsee the "clear" ice at any time before she fell. Snow had fallen approximately eight days beforethe accident, and the temperature fluctuated between measurements both above and below thefreezing point in the days following the snowfall.
The defendant established its prima facie entitlement to judgment as a matter of law bydemonstrating that it neither created nor had actual or constructive notice of the ice that allegedlycaused the plaintiff to fall. The plaintiff failed to raise a triable issue of fact in opposition (see Kaplan v DePetro, 51 AD3d730, 731 [2008]; DeFalco v BJ'sWholesale Club, Inc., 38 AD3d 824 [2007]).
Under the circumstances, it would be speculative to assume that even if the icy conditionwere the result of residual moisture left by the snow that fell eight days before the accident, theice itself had been there for a sufficient period of time to give the defendant constructive noticeof that condition (see Simmons v Metropolitan Life Ins. Co., 84 NY2d 972 [1994]; Christal v Ramapo Cirque [*2]Homeowners Assoc., 51 AD3d 846 [2008]; Bonney v City of New York, 41 AD3d404 [2007]; Robinson v Trade LinkAm., 39 AD3d 616 [2007]; DeVivo v Sparago, 287 AD2d 535 [2001]).Accordingly, the Supreme Court properly granted the defendant's motion for summary judgmentdismissing the complaint. Prudenti, P.J., Spolzino, McCarthy and Leventhal, JJ., concur.