| Gershfeld v Marine Park Funeral Home, Inc. |
| 2009 NY Slip Op 04026 [62 AD3d 833] |
| May 19, 2009 |
| Appellate Division, Second Department |
| Max Gershfeld et al., Appellants, v Marine Park FuneralHome, Inc., Respondent. |
—[*1] Nicoletti Gonson Spinner & Owen LLP, New York, N.Y. (Angela A. Lainhart of counsel),for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) anorder of the Supreme Court, Kings County (Martin, J.), dated January 2, 2008, which granted thedefendant's motion for summary judgment dismissing the complaint, and (2) a judgment of thesame court entered February 25, 2008, which, upon the order, is in favor of the defendant andagainst them, dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).[*2]
The plaintiff Max Gershfeld (hereinafter the injuredplaintiff) allegedly slipped and fell on ice on an exterior mat abutting one of the entrances to thedefendant's premises. At a deposition, the injured plaintiff stated that the ice was clear and notvisible until it was touched. The defendant subsequently moved for summary judgment,contending that it did not create the alleged defect or have actual or constructive notice of it. TheSupreme Court granted the motion and subsequently entered a judgment in favor of thedefendant and against the plaintiffs, dismissing the complaint. We affirm.
The defendant established its prima facie entitlement to judgment as a matter of law bydemonstrating that it did not create the alleged defect or have actual or constructive notice of it(see Christal v Ramapo CirqueHomeowners Assoc., 51 AD3d 846 [2008]; Kaplan v DePetro, 51 AD3d 730 [2008]; Makaron v Luna Park Hous. Corp., 25AD3d 770 [2006]; Zabbia vWestwood, LLC, 18 AD3d 542 [2005]; Murphy v 136 N. Blvd. Assoc., 304AD2d 540 [2003]; Carricato v Jefferson Val. Mall Ltd. Partnership, 299 AD2d 444[2002]). In opposition, the plaintiffs failed to submit evidence sufficient to raise a triable issue offact. The plaintiffs' contention that the icy condition formed as a result of the defendant'snegligent snow removal efforts is speculative (see Robinson v Trade Link Am., 39 AD3d 616 [2007]).Additionally, a general awareness that a hazardous condition may be present is insufficient toestablish notice (see Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]).Skelos, J.P., Florio, Leventhal and Hall, JJ., concur.