| Quintanilla v State of New York |
| 2012 NY Slip Op 02660 [94 AD3d 846] |
| April 10, 2012 |
| Appellate Division, Second Department |
| Jeanette Quintanilla et al., Appellants, v State of NewYork, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek andMarion R. Buchbinder of counsel), for respondent.
In a claim to recover damages for personal injuries, etc., the claimants appeal from ajudgment of the Court of Claims (Lopez-Summa, J.), dated November 15, 2010, which, upon adecision of the same court dated October 18, 2010, made after a nonjury trial on the issue ofliability, is in favor of the defendant and against them dismissing the claim.
Ordered that the judgment is affirmed, with costs.
The claimant Jeanette Quintanilla (hereinafter the claimant) slipped and fell on a large pieceof ice in a parking lot owned by the State of New York, allegedly sustaining injuries. There hadbeen a winter storm three days earlier, during which the State had the parking lot plowed andsanded. The lot was resanded the following day. After a nonjury trial on the issue of liability, theCourt of Claims determined that the State did not create, or have actual or constructive notice of,the specific icy condition which resulted in the claimant's fall, and that the State acted reasonablyunder the circumstances. Judgment was entered in favor of the State and against the claimants,dismissing the claim. The claimants appeal from the judgment. We affirm.
In reviewing a determination made after a nonjury trial, the power of this Court is as broad asthat of the trial court, and this Court may render the judgment it finds "warranted by the facts,"bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses andhearing the testimony (Northern Westchester Professional Park Assoc. v Town ofBedford, 60 NY2d 492, 499 [1983]; see DePaula v State of New York, 82 AD3d 827 [2011]).
"The owner or possessor of property has a duty to maintain the property in a reasonably safecondition and may be held liable for injuries arising from a dangerous condition on the propertyif such owner or possessor either created the condition, or had actual or constructive notice of itand a reasonable time within which to remedy it" (Patrick v Bally's Total Fitness, 292AD2d 433, 434 [2002]). " 'The critical issue to be resolved is whether, under the prevailingconditions, the State fulfilled its duty to take appropriate measures to keep the [lot] safe' "(Pappo v State of New York, 233 AD2d 379, 379-380 [1996], quoting Goldman vState of New York, 158 AD2d 845, 845 [1990]). Appropriate measures "are those whichunder the circumstances are reasonable" and the standard [*2]must be applied with an awareness of the realities caused byweather (McGowan v State of NewYork, 41 AD3d 670, 671 [2007] [internal quotation marks omitted]; see Pappo vState of New York, 233 AD2d 379 [1996]).
The Court of Claims' determination after a nonjury trial that the claimants failed to establishthat the State created, or had actual or constructive notice of, the specific icy condition whichresulted in the claimant's fall, and that it acted reasonably under the circumstances, waswarranted by the facts and will not be disturbed. It cannot be said that the State created orexacerbated a dangerous condition by merely plowing the snow days before the claimant'saccident (see Lichtman v Village ofKiryas Joel, 90 AD3d 1001 [2011]; Quintanilla v John Mauro's Lawn Serv., Inc., 79 AD3d 838[2010]). The Court of Claims properly rejected as speculative the opinion of the claimants' expertmeteorologist that the piece of ice upon which the claimant fell existed for at least 14 hours priorto the accident (see Simon v PABRAssoc., LLC, 61 AD3d 663 [2009]). The remaining testimony failed to establish that thespecific icy condition which caused the claimant's fall existed for a sufficient length of time priorto the accident to permit the State to discover and remedy it (see Gordon v AmericanMuseum of Natural History, 67 NY2d 836, 837 [1986]). Mastro, A.P.J., Hall, Lott and Sgroi,JJ., concur.