| Spinoccia v Fairfield Bellmore Ave., LLC |
| 2012 NY Slip Op 03627 [95 AD3d 993] |
| May 8, 2012 |
| Appellate Division, Second Department |
| Tara Spinoccia, Appellant, v Fairfield Bellmore Avenue,LLC, Respondent. |
—[*1] Rubin, Fiorella & Friedman, LLP, New York, N.Y. (Michael C. O'Malley of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Rebolini, J.), dated September 22, 2010, 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 small patch of black ice in a parking lot locatedwithin an apartment complex owned by the defendant.
A property owner will be held liable for damages sustained in a slip-and-fall accident "onlywhen it created the dangerous condition which caused the accident or had actual or constructivenotice thereof" (Robinson v Trade LinkAm., 39 AD3d 616, 616-617 [2007]; see Zabbia v Westwood, LLC, 18 AD3d 542, 544 [2005]).
The defendant made a prima facie showing of entitlement to judgment as a matter of law bydemonstrating that it neither created nor had actual or constructive notice of the icy conditionalleged to have caused the plaintiff's fall (see Christal v Ramapo Cirque Homeowners Assoc., 51 AD3d 846[2008]). In opposition, the plaintiff failed to raise a triable issue of fact (see Gjoni v 108 Rego Devs. Corp., 48AD3d 514, 515 [2008]). The plaintiff did not contend that the defendant created the icycondition. Furthermore, there was no proof to support the plaintiff's contention that the defendanthad actual or constructive notice of the ice patch. Both the plaintiff and a representative of thedefendant testified at their depositions that they did not see the patch of ice at any time before theaccident. In addition, the affidavit of the plaintiff's expert did not establish when or how thesubject ice patch developed. Under these circumstances, any finding as to when the ice patchdeveloped, and consequently, whether there was adequate time to discover and remedy thesituation, could only be based on speculation (see Makaron v Luna Park Hous. Corp., 25 AD3d 770 [2006];Murphy v 136 N. Blvd. Assoc., 304 AD2d 540, 540-541 [2003]; Carricato v JeffersonVal. Mall Ltd. Partnership, 299 AD2d 444 [2002]).[*2]
Accordingly, the Supreme Court properly granted thedefendant's motion for summary judgment dismissing the complaint (see generallyZuckerman v City of New York, 49 NY2d 557 [1980]). Rivera, J.P., Chambers, Roman andSgroi, JJ., concur.