| Simon v PABR Assoc., LLC |
| 2009 NY Slip Op 02769 [61 AD3d 663] |
| April 7, 2009 |
| Appellate Division, Second Department |
| Edward Simon, Appellant, v PABR Associates, LLC,Respondent. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (David Bordoni ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Lewis, J.), dated January 14, 2008, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly sustained personal injuries when he slipped and fell on ice in front ofa wheelchair ramp in the parking lot adjacent to the building where he was employed. Thepremises were owned by the defendant. The plaintiff had arrived at work approximately 10minutes prior to his accident and had traversed, without incident, the same area of the parking lotwhere he subsequently fell. When he first traversed that area, the plaintiff did not observe anysnowy or icy condition. While he was on the ground following his accident, he first noticed thatit was wet and slippery, and he felt ice with his hand. The plaintiff also testified that there hadbeen a snowstorm earlier in the week, and although he did not observe any sand or salt in theparking lot, the lot was clear where the cars drove and snow was piled up along the sides of thelot.
Based upon the foregoing deposition testimony, the defendant established its prima facieentitlement to judgment as a matter of law by demonstrating that it neither created nor had actualor constructive notice of the ice that allegedly caused the plaintiff to fall (see Aurilia v Empire Realty Assoc., 58AD3d 773 [2009]; Kaplan vDePetro, 51 AD3d 730, 731 [2008]). In opposition, the plaintiff failed to raise a triableissue of fact (see Aurilia v EmpireRealty Assoc., 58 AD3d 773 [2009]; Kaplan v DePetro, [*2]51 AD3d at 731).
The plaintiff's claims that an icy condition was caused by melting snow leaking from acanopy hanging over the entranceway to the building, or from the melting and refreezing ofsnow from the prior snowstorm, was based on pure speculation and conjecture (see Simmonsv Metropolitan Life Ins. Co., 84 NY2d 972, 974 [1994]; Aurilia v Empire Realty Assoc., 58 AD3d 773 [2009]; Christal v Ramapo Cirque HomeownersAssoc., 51 AD3d 846, 846-847 [2008]; Bonney v City of New York, 41 AD3d 404 [2007]; Robinson v Trade Link Am., 39 AD3d616, 617 [2007]; DeVivo v Sparago, 287 AD2d 535 [2001]). Therefore, any findingas to when the alleged icy condition developed and whether it existed for a sufficient amount oftime to have provided constructive notice and a reasonable time to remedy it could only be basedon speculation (see DeVivo v Sparago, 287 AD2d 535 [2001]; Penny v PembrookMgt., 280 AD2d 590, 590-591 [2001]). Thus, the plaintiff's claims were insufficient todefeat the motion for summary judgment.
Accordingly, the Supreme Court properly granted the defendant's motion for summaryjudgment dismissing the complaint. Skelos, J.P., Santucci, Dickerson and Eng, JJ., concur.[See 18 Misc 3d 1117(A), 2008 NY Slip Op 50105(U).]