| Wilkowski v Big Lots Stores, Inc. |
| 2009 NY Slip Op 08367 [67 AD3d 1414] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| Sheila Wilkowski, Appellant, v Big Lots Stores, Inc., et al.,Respondents. |
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Sugarman Law Firm, LLP, Buffalo (Michael A. Riehler of counsel), fordefendants-respondents South Ogden Associates, Donald H. Smith, doing business as SouthOgden Associates, Gary S. Smith, doing business as South Ogden Associates and Harold J.Smith, doing business as South Ogden Associates.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered May5, 2008 in a personal injury action. The order granted the motion of defendants South OgdenAssociates, Donald H. Smith, doing business as South Ogden Associates, Gary S. Smith, doingbusiness as South Ogden Associates, and Harold J. Smith, doing business as South OgdenAssociates, and the cross motion of defendant Big Lots Stores, Inc. for summary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustainedwhen she slipped and fell outside a store leased by defendant Big Lots Stores, Inc. (Big Lots)and owned by the remaining defendants (collectively, South Ogden defendants). According toplaintiff, defendants were negligent in causing snow and ice to accumulate on the propertyalthough, according to her deposition testimony, she recalled only that she slipped on a wetsurface. Supreme Court properly granted the motion of the South Ogden defendants and that partof the cross motion of Big Lots for summary judgment dismissing the complaint and all crossclaims. In support of their respective motion and cross motion, defendants submitted thedeposition testimony of plaintiff, who testified that the entranceway to the store where she fellwas "slippery" and "wet" but that she did not know what [*2]caused her to fall. She further testified that it was "drizzling"outside at the time of the accident. Defendants also submitted the deposition testimony of thestore manager, who testified that it had been raining that day and that the rain had turned to ice inthe parking lot. The store manager did not testify, however, that ice had formed in theentranceway to the store. Based on that evidence, defendants met their initial burden byestablishing that they lacked either actual or constructive notice of any allegedly dangerouscondition and that they did not create it (see Wilson v Walgreen Drug Store, 42 AD3d 899, 900 [2007]),and plaintiff failed to raise a triable issue of fact (see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). Even assuming, arguendo, that the slippery, wet substanceon which plaintiff slipped and fell was in fact black ice, we conclude that defendants establishedas a matter of law that any such ice " 'formed so close in time to the accident that [it] could notreasonably have been expected to notice and remedy the condition' " (Kimpland v Camillus Mall Assoc.,L.P., 37 AD3d 1128, 1129 [2007]). Present—Hurlbutt, J.P., Centra, Fahey, Carniand Pine, JJ.